| People v DeCarr |
| 2015 NY Slip Op 06379 [130 AD3d 1365] |
| July 30, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ritchie DeCarr Appellant. |
Cynthia Feathers, Glens Falls, for appellant, and appellant pro se.
Glenn MacNeill, District Attorney, Malone (Jennifer M. Hollis of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Franklin County(Catena, J.), rendered April 15, 2013, upon a verdict convicting defendant of the crimesof criminal sale of a controlled substance in the third degree and criminal possession of acontrolled substance in the third degree (two counts).
Defendant was allegedly involved in two cocaine transactions, one on May 31, 2012with a confidential informant (hereinafter CI) and another on June 7, 2012 where the CIwas accompanied by an undercover police officer. He was charged by indictment withcriminal sale of a controlled substance in the third degree, one count for each date, andcriminal possession of a controlled substance in the third degree, one count for each date.Following a trial at which defendant testified, a jury acquitted him of the sale count fromMay 31, 2012 (count one of the indictment), but found him guilty of the remaining threecounts. County Court sentenced him, as a second felony drug offender, to threeconcurrent terms of six years in prison together with postrelease supervision.
Defendant argues that County Court erred in allowing a police officer to testify thatthe CI informed him that she could buy drugs from defendant. We are unpersuaded. Thisproof "demonstrated how defendant became the target of the investigation and providedimportant background information" (People v Sudler, 75 AD3d 901, 905 [2010], lvdenied 15 NY3d 956 [2010]; see People v Graves, 194 AD2d 925, 926[1993], lv denied 82 NY2d 719 [1993]), and it was "admitted not for its truth butfor the narrow purpose of explaining an officer's actions and [*2]the sequence of events in an investigation" (People v Gregory, 78 AD3d1246, 1246 [2010], lv denied 16 NY3d 831 [2011]). Moreover, CountyCourt gave proper limiting instructions to the jury regarding such proof (see People v Stevens, 87 AD3d754, 756 [2011], lv denied 18 NY3d 861 [2011]; People v Gregory,78 AD3d at 1247).
Next, we consider defendant's contention that reversible error occurred when the CI,on re-direct examination and over an objection, testified that she had previously smokedcrack cocaine with defendant. "[T]he familiar Molineux rule states that evidenceof a defendant's uncharged crimes or prior misconduct is not admissible if it cannotlogically be connected to some specific material issue in the case, and tends only todemonstrate the defendant's propensity to commit the crime charged" (People v Cass, 18 NY3d553, 559 [2012]). Where a defendant creates a misleading perception based on theexcluded proof, the door may be opened to such proof (see People v Rojas, 97NY2d 32, 34 [2001]; People vMitchell, 112 AD3d 1071, 1073 [2013], lv denied 22 NY3d 1140[2014]; People v Daniels,103 AD3d 807, 808 [2013], lv denied 21 NY3d 942 [2013]). Defensecounsel indicated in his opening statement that the CI was an experienced cocaine userwho lured him into the transaction using his infatuation with her, and did so to gain favorwith police for her own legal problems. Defense counsel cross-examined the CIextensively about her prior cocaine use. The combination of the theory urged in openingand cross-examination of the CI opened the door for the People to clarify on re-directthat the CI's cocaine use had, in fact, been with defendant (see People v Rojas, 97NY2d at 34). County Court gave appropriate limiting instructions regarding this proofboth when offered and in its charge (see People v Bellamy, 118 AD3d 1113, 1116-1117 [2014],lv denied 25 NY3d 1159 [June 10, 2015]; People v Reid, 97 AD3d1037, 1038 [2012], lv denied 19 NY3d 1104 [2012]). We do agree withdefendant, however, that the CI improperly expanded her testimony to give anunnecessary and detailed description of the physical effects of the cocaine on defendantthat she had observed when they smoked it together, but this error " 'washarmless since there was no significant probability that defendant would have beenacquitted' had this evidence not been admitted at trial" (People v Wright, 88 AD3d1154, 1157-1158 [2011], lv denied 18 NY3d 863 [2011], quoting People v Tatro, 53 AD3d781, 785 [2008], lv denied 11 NY3d 835 [2008]).
The conviction for possessing cocaine on May 31, 2012 (count two) was not againstthe weight of the evidence. Where, as here, a different verdict would not have beenunreasonable, we "weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony whileviewing the evidence in a neutral light and giving deference to the jury's credibilityassessments" (People vGaudiosi, 110 AD3d 1347, 1348 [2013], lv denied 22 NY3d 1040[2013] [internal quotation marks and citations omitted]). Although defendant wasacquitted of the sale count from May 31, 2012, "a defendant's acquittal on the sale countdoes not negate the elements of the possession count, for a person can possess and intendto sell a narcotic drug, but not actually accomplish a sale" (People v Kramer, 118 AD3d1040, 1043 [2014] [internal quotation marks, brackets and citation omitted]). Whenthe CI went to defendant's residence on May 31, 2012, she went alone, unlike the June 7,2012 transaction where she was accompanied by an undercover officer. The CI waswearing a wire on May 31, 2012, but the recording was not of sufficient quality toindicate defendant's involvement in a transaction. The elements of both crimes chargedfor May 31, 2012 thus rested in large part on the credibility of the CI's testimony.Defendant testified and, although he did not directly address possessing cocaine on May31, 2012, he explicitly denied selling any cocaine on such date. The jury accepted theproof regarding possession but discredited the CI's claim regarding a consummated saleon May 31, 2012 (see People v Mendoza, 300 AD2d 824, 825 [2002], lvdenied 99 NY2d 617 [2003]). We discern no reason to disregard those credibilitydeterminations and, upon reviewing the proof in the record, the jury's conviction ofdefendant on count two is supported by the weight of the evidence.
[*3] The failure to request an entrapment charge did notconstitute ineffective assistance of counsel. "It is well settled that to prevail on a claim ofineffective assistance of counsel, it is incumbent on defendant to demonstrate the absenceof strategic or other legitimate explanations for counsel's failure. Absent such a showing,it will be presumed that counsel acted in a competent manner and exercised professionaljudgment" (People vBarboni, 21 NY3d 393, 405-406 [2013] [internal quotation marks, brackets,ellipsis and citations omitted]). Entrapment is an affirmative defense (see PenalLaw § 40.05) that defendant must prove by a preponderance of the evidence(see Penal Law § 25.00 [2]). "A defendant thus assumes asubstantial burden in asserting entrapment . . . [including] prov[ing] that heor she had no disposition to commit the acts charged" (People v DeGina, 72NY2d 768, 775 [1988] [citation omitted]). Given the difficulty faced bydefendant—who had a prior misdemeanor drug possession conviction—inattempting to prove that he had no disposition to possess or sell cocaine, together withpotential additional evidence that might have been produced by the People to addresssuch a claim, we cannot conclude that there was no legitimate strategy for the coursechosen by counsel. The other purported shortcomings by counsel do not reveal a lack ofmeaningful representation. In fact, in addition to getting an acquittal on one of the fourcounts, the record further reflects that counsel "articulated a logical defense theory attrial, raised relevant objections, effectively cross-examined the People's witnesses andotherwise zealously represented defendant" (People v Bateman, 124 AD3d 983, 986 [2015], lvdenied 25 NY3d 949 [2015]). The remaining arguments, including the pro sesubmissions by defendant, have been considered and are unavailing.
Peters, P.J., Garry and Lynch, JJ., concur. Ordered that the judgment is affirmed.