| People v Taylor |
| 2015 NY Slip Op 02016 [126 AD3d 1120] |
| March 12, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMichael Taylor, Appellant. |
Arthur G. Dunn, Troy, for appellant.
D. Holley Carnright, District Attorney, Kingston (Shirley Huang of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered July 6, 2012, upon a verdict convicting defendant of the crimes of criminalsale of a controlled substance in the third degree (two counts) and criminal possession ofa controlled substance in the third degree (two counts).
Defendant was indicted on two counts of criminal sale of a controlled substance inthe third degree and two counts of criminal possession of a controlled substance in thethird degree after he sold crack cocaine to an undercover police investigator twice on thesame day. Following a jury trial, defendant was convicted as charged and sentenced to anaggregate prison term of 15 years. Defendant now appeals.
We reject defendant's contention that the judgment of conviction must be reversedand a new trial ordered because he was denied the effective assistance of counsel. Aclaimed violation of the constitutional right to the effective assistance of counsel will notsurvive judicial scrutiny " '[s]o long as the evidence, the law, and thecircumstances of a particular case, viewed in totality and as of the time of therepresentation, reveal that the attorney provided meaningful representation' "(People v Benevento, 91 NY2d 708, 712 [1998], quoting People v Baldi,54 NY2d 137, 147 [1981]; seePeople v Wiltshire, 96 AD3d 1227, 1229 [2012], lv denied 22 NY3d1204 [2014]). In particular, after defendant's counsel failed to ask the investigator duringcross-examination if he performed field testing on the substances that he purchased fromdefendant, County Court denied defendant's subsequent request to admit theinvestigator's purportedly inconsistent grand jury testimony due to counsel's failure to laya foundational basis. In [*2]particular, during his trialtestimony, the investigator explained how he processed the drugs after he purchasedthem from defendant, but made no specific mention of field testing the substances. Theinvestigator's testimony, however, was not inconsistent with his prior grand jurytestimony, during which he allegedly stated that he had field tested the drugs thatdefendant had sold to him and, therefore, there was no testimony that could be used forimpeachment purposes. Moreover, although counsel's failure to pursue the issue of fieldtesting while questioning the investigator was not a tactical decision, we do not agreethat one isolated misstep of this nature was so "egregious and prejudicial as tocompromise . . . defendant's right to a fair trial" (People v Caban, 5 NY3d143, 152 [2005]; accordPeople v Ford, 110 AD3d 1368, 1370 [2013], lv denied 24 NY3d 1043[2014]).
As to defendant's assertion that the sentence imposed was unduly harsh andexcessive, County Court sentenced defendant to serve two concurrent prison terms of 12years for the criminal possession and criminal sale convictions stemming from the first oftwo drug sales, which were set to run consecutively with the two concurrent prison termsof three years for the criminal sale and criminal possession convictions resulting from thesecond drug sale. Defendant argues that, because both drug sales involved smallquantities of drugs and occurred within a short period of time, the court abused itsdiscretion in imposing consecutive sentences. We disagree. While the drug salesoccurred in a somewhat "close temporal proximity," they were separate criminaltransactions (People vPerry, 70 AD3d 1063, 1065 [2010], lv denied 14 NY3d 804 [2010];see People v Brown, 80 NY2d 361, 363-364 [1992]). Therefore, given theabsence of extraordinary circumstances or an abuse of discretion, we decline to exerciseour interest of justice jurisdiction to modify defendant's sentences (compare People v McCombs,18 AD3d 888, 890-891 [2005]; People v Holmes, 304 AD2d 1043, 1045[2003], lv denied 100 NY2d 642 [2003]).
Lahtinen, J.P., Egan Jr. and Lynch, JJ., concur. Ordered that the judgment isaffirmed.