| People v Henry |
| 2015 NY Slip Op 05229 [129 AD3d 1334] |
| June 18, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vQuasim Henry, Appellant. |
Mitch Kessler, Cohoes, for appellant.
D. Holley Carnright, District Attorney, Kingston (Paul DerOhannesian of counsel),for respondent.
Rose, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered April 4, 2013, upon a verdict convicting defendant of the crimes of criminalsale of a controlled substance in the third degree and criminal possession of a controlledsubstance in the fourth degree.
Defendant was arrested after he sold crack cocaine to a confidential informant(hereinafter the CI) in a "buy and bust" operation. Following a jury trial, he wasconvicted of criminal sale of a controlled substance in the third degree and criminalpossession of a controlled substance in the fourth degree, but he was acquitted of acharge of criminal possession of a controlled substance in the third degree. County Courtsentenced him, as a prior felony offender, to an aggregate prison term of eight years,followed by three years of postrelease supervision. He appeals, and we affirm.
Defendant contends that, because he was acquitted of the charge of criminalpossession of a controlled substance in the third degree, which requires proof ofpossession of a narcotic drug "with intent to sell it" (Penal Law § 220.16[1]), the verdict finding him guilty of criminal sale of a controlled substance in the thirddegree (see Penal Law § 220.39 [1]) is factually inconsistent and,therefore, against the weight of the evidence. He concedes, however, that the verdict isnot repugnant. In such a situation, the Court of Appeals has noted that "it is imprudent tospeculate concerning the factual determinations that underlay the verdict because whatmight appear to be an irrational verdict may actually constitute a jury's permissibleexercise of mercy or [*2]leniency" (People vHorne, 97 NY2d 404, 413 [2002]; accord People v Yanayaco, 99 AD3d 416, 417 [2012],lv denied 20 NY3d 1105 [2013]).
Here, police officers searched the CI and his vehicle prior to the transaction,provided him with prerecorded buy money and kept him under surveillance. Defendantarrived at the meeting place that had been arranged during a controlled phone call andentered the CI's vehicle. Upon hearing the CI state the previously agreed-upon phraseindicating completion of the sale, the officers rapidly approached the vehicle and placeddefendant and the CI into custody. The prerecorded buy money was found on defendant'sperson and the CI had a plastic baggie containing more than seven grams of crackcocaine. Defendant was later videotaped admitting to possession of the crack cocaine andgiving it to the CI in exchange for money. Despite defendant's denial at trial that he solddrugs and his claim that the CI gave him money to pay off a debt, there was ampleevidence supporting the verdict and, deferring to the jury's ability to view the witnessesand observe their demeanor, we find no basis to disturb the verdict as against the weightof the evidence, notwithstanding its logical inconsistency (see People v Barrow, 103AD3d 745, 745-746 [2013], lv denied 21 NY3d 941 [2013]; People v Conyers, 48 AD3d362, 362-363 [2008], lv denied 10 NY3d 933 [2008]).
Nor do we find any error by County Court in modifying its Sandoval ruling.The court originally limited the People to inquiring into whether defendant had beenconvicted in 2003 of a class D felony without reference to the underlying facts.Nevertheless, defense counsel referenced the fact that the conviction was related tococaine possession during his opening statement and claimed that defendant underwenttreatment and "does not use cocaine anymore." The People thereafter requested that theSandoval ruling be modified so as to allow them to question defendant about thecocaine possession, but County Court reserved decision pending defendant's directtestimony. On his direct examination, defendant portrayed the conviction as only havingbeen related to his use of cocaine and testified that he "went to rehab and outpatientprogram for [his] cocaine." Rather than being solely related to his use of cocaine,however, the underlying facts of the conviction reflect that defendant had possessed over14 separate twists of crack cocaine at the time of his arrest, he attempted to conceal thedrugs in his anus when confronted by the police, and he was found to be in possession ofa notebook converting grams to ounces. Inasmuch as defendant affirmatively put certainfacts about the prior conviction before the jury, but did so "in a misleading andincomplete fashion," we find no abuse of discretion by County Court in allowing thePeople to clarify the nature of the conviction (People v Conyers, 48 AD3d at 363;see People v Alicea, 276 AD2d 915, 916 [2000], lv denied 96 NY2d 780[2001]; People v Marsh, 248 AD2d 743, 744-745 [1998], lv denied 92NY2d 856 [1998]; see also People v Fardan, 82 NY2d 638, 646 [1993]). Further,County Court gave specific limiting instructions to the jury that the proof regardingdefendant's prior conviction could not be considered as to whether he had a propensity tocommit any particular crime and, instead, it could only be considered on the issue ofdefendant's credibility (see People v Fardan, 82 NY2d at 646-647; People vSchwerbel, 224 AD2d 830, 831 [1996]).
Defendant also contends that it was improper for the People to question him oncross-examination regarding why he had waited until trial to first make his claims that theCI had given him the money in repayment of a debt and that the police had then coercedhis videotaped statement. Because defendant failed to object to this cross-examination atthe time, his contention on appeal is not preserved for our review (see CPL470.05 [2]; People vRebollo, 107 AD3d 1059, 1061 [2013]; People v Houck, 101 AD3d 1239, 1240 [2012]). In anyevent, the People's questions did not implicate defendant's right to remain silentinasmuch as, after having received his Miranda warnings, defendant did notremain silent. Instead, he proceeded to relate his version of events (compare People vDe George, 73 NY2d 614, 617 [1989]). Accordingly, [*3]the People's questions concerning defendant's failure toinclude his claim concerning the money in his statement to the police, as well as hisfailure to claim that his statement was coerced, constituted proper impeachment (seePeople v Savage, 50 NY2d 673, 677-679 [1980], cert denied 449 US 1016[1980]).
Finally, we are unpersuaded that defendant was denied the effective assistance ofcounsel. The elicitation of evidence that opened the door to modification of theSandoval ruling was clearly a strategic choice by counsel, and defendant'sdisagreement in hindsight with that strategy does not establish that he received less thanmeaningful representation (see People v Flores, 84 NY2d 184, 187 [1994]; People v Odom, 53 AD3d1084, 1087 [2008], lv denied 11 NY3d 792 [2008]; People v Salaam, 46 AD3d1130, 1132 [2007], lv denied 10 NY3d 816 [2008]). The failure to object totestimony regarding the CI's use of the prearranged phrase to indicate that a sale had beencompleted did not constitute ineffective assistance of counsel, because this testimonysimply provided background information as to how and why the police confronteddefendant and, accordingly, a hearsay objection would not have been successful (seePeople v Tosca, 98 NY2d 660, 661 [2002]; People v Coker, 121 AD3d 1305, 1306 [2014]; People v Petrie, 3 AD3d665, 666 [2004]). Nor can we fault counsel for failing to object to thecross-examination concerning the alleged coercion of his statement to the police since, aswe have said, we find nothing improper about that line of questioning (see People v Stultz, 2 NY3d277, 287 [2004]; People vCampbell, 17 AD3d 925, 926 [2005], lv denied 5 NY3d 760 [2005]). Asfor the questions about defendant's tattoos, even if we were to assume that they wereirrelevant and prejudicial, they were limited, and we cannot conclude that the failure toobject to them rendered the trial unfair (see People v Briskin, 125 AD3d 1113, 1122 [2015]; People v Jordan, 99 AD3d1109, 1110 [2012], lv denied 20 NY3d 1012 [2013]; People v Morgan, 24 AD3d950, 953 [2005], lv denied 6 NY3d 815 [2006]). Considering the totality ofthe circumstances and viewing them as of the time of representation, the record reflectsthat counsel pursued a legitimate strategy, vigorously cross-examined the People'switnesses, delivered cogent opening and closing statements and obtained an acquittal onone of the charges; accordingly, counsel provided meaningful representation (seePeople v Benevento, 91 NY2d 708, 712 [1998]; People v Jordan, 99 AD3d at1110-1111; People v Curry, 294 AD2d 608, 611 [2002], lv denied 98NY2d 674 [2002]).
Peters, P.J., Lahtinen and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.