| People v Cruz |
| 2015 NY Slip Op 06446 [131 AD3d 724] |
| August 6, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJorge Cruz, Appellant. |
Danielle Neroni Reilly, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedMay 15, 2013 in Albany County, upon a verdict convicting defendant of the crimes ofcriminal possession of a controlled substance in the third degree and attempted criminalsale of a controlled substance in the third degree.
Defendant was indicted for the crimes of criminal possession of a controlledsubstance in the third degree and attempted criminal sale of a controlled substance in thethird degree in relation to an August 2012 incident where he allegedly arrived at adesignated location in the City of Albany intending to sell heroin to a confidentialinformant (hereinafter CI). Prior to trial, defendant moved to, among other things,suppress the physical evidence—namely, the drugs in question and his cellphone—recovered upon his arrest, which motion Supreme Court denied. At apretrial conference prior to jury selection, defendant stated his desire to proceed pro se,which request Supreme Court granted. At the close of trial, the jury found defendantguilty as charged, and he was thereafter sentenced to an aggregate prison term of sixyears and two years of postrelease supervision. Defendant now appeals.
As an initial matter, defendant failed to preserve his challenge to the legal sufficiencyof the evidence given that his motion for a trial order of dismissal at the close of thePeople's proof was not "specifically directed at the error[s] being urged" on appeal (People v Hawkins, 11 NY3d484, 492 [2008] [internal quotation marks and citation omitted]; see People vGreenfield, 112 [*2]AD3d 1226, 1226 [2013], lvdenied 23 NY3d 1037 [2014]). However, a weight of the evidence challenge, whichbears no preservation requirement, also requires consideration of the adequacy of theevidence as to each element of the crimes (see People v McGough, 122 AD3d 1164, 1166 [2014];People v Greenfield, 112 AD3d at 1226). With respect to the charge of criminalpossession of a controlled substance in the third degree, as relevant here, the People wererequired to establish that defendant knowingly and unlawfully possessed a narcotic drugwith intent to sell it (see Penal Law § 220.16 [1]). With respect toattempted criminal sale of a controlled substance in the third degree, as relevant here, thePeople were required to show that defendant intended to sell a narcotic drug and engagedin conduct that tended to effect the commission of such sale (see Penal Law§§ 110.00, 220.39 [1]).
Here, the CI testified that he had known defendant since May 2012 and that he hadpurchased heroin from him three to four times a week during the time leading up to theincident in question. The CI further testified that, prior to the incident, he made a seriesof controlled calls to defendant about buying a package of 10 bags of heroin on anarranged date at a specified location in Albany. On that date, the CI went to that locationwith several police officers and, when he saw defendant approaching, pointed him out tothe officers and called him one last time on his cell phone, at which point defendantanswered his phone and was thereafter arrested. Several police officers corroborated theCI's account and identified defendant as the individual who arrived to meet the CI thatday. One officer testified that, upon defendant's arrest, he recovered what appeared to bepackets of heroin from defendant's pocket, and a forensic scientist testified that, pursuantto testing and in his expert opinion, the packets contained heroin.
Considering the foregoing testimony, we find that there was adequate evidence fromwhich the jury could infer that defendant arrived at the location predetermined for thedrug deal with the heroin previously identified for sale, which he intended to sell to theCI. Thus, viewing the evidence in a neutral light and deferring to the jury's credibilitydeterminations, defendant's convictions were not against the weight of the evidence (see People v Reed, 4 AD3d120, 121 [2004], lv denied 2 NY3d 805 [2004]; People v Jiminez,300 AD2d 77, 78 [2002], lv denied 1 NY3d 574 [2003]; see also People v Chatham, 55AD3d 1045, 1046 [2008], lv denied 14 NY3d 839 [2010]).
Supreme Court properly denied defendant's motion to suppress the physical evidencebecause such evidence was recovered within the scope of a search incident to defendant'slawful arrest. In the absence of a warrant, a lawful arrest is one that is supported byprobable cause (see CPL 140.10 [1] [b]; People v Sudler, 75 AD3d 901, 902 [2010], lvdenied 15 NY3d 956 [2010]). "Probable cause . . . exists when anofficer has knowledge of facts and circumstances sufficient to support a reasonable beliefthat an offense has been or is being committed" (People v Jenkins, 90 AD3d 1326, 1327 [2011] [internalquotation marks and citations omitted], lv denied 18 NY3d 958 [2012]; seePeople v Sudler, 75 AD3d at 902). Here, the arresting officers observed the CI'sphone calls setting up the drug deal with defendant and, on the day in question, saw anindividual fitting defendant's description walking toward the designated location andanswering his cell phone at the moment the CI called. This evidence constituted probablecause to arrest defendant (seePeople v Nichol, 121 AD3d 1174, 1175 [2014]; People v Jenkins, 90AD3d at 1327; People v Sudler, 75 AD3d at 902-903; People v Vanhoesen, 31 AD3d805, 806 [2006]). In executing the arrest, one officer secured defendant's left handand, in so doing, took possession of his cell phone. Additionally, another officer'ssubsequent search of defendant's pocket recovered 10 envelopes of what appeared to beheroin. Given that the two items were within defendant's immediate reach and wereseized immediately upon his arrest, such evidence was recovered within the scope of asearch incident to defendant's lawful arrest (see People v Vasquez, 112 AD3d 858, 859 [2013], lvdenied 23 NY3d 1044 [2014]; People v Roberts, 80 AD3d 787, 789[*3][2011], lv denied 16 NY3d 862 [2011]; Peoplev Perez, 252 AD2d 353, 353 [1998], lv denied 92 NY2d 984 [1998]).Accordingly, Supreme Court properly denied defendant's motion to suppress the physicalevidence.
Supreme Court properly granted defendant's request to proceed pro se at trial. "Adefendant in a criminal case may invoke the right to defend pro se provided: (1) therequest is unequivocal and timely asserted, (2) there has been a knowing and intelligentwaiver of the right to counsel, and (3) the defendant has not engaged in conduct whichwould prevent the fair and orderly exposition of the issues" (People v McIntyre,36 NY2d 10, 17 [1974] [emphasis omitted]; accord Matter of Kathleen K. [Steven K.], 17 NY3d 380,385 [2011]; People vDashnaw, 116 AD3d 1222, 1230 [2014], lv denied 23 NY3d 1019[2014]). As to the first element, defendant first voiced his desire to represent himself at apretrial conference six days before trial, but told the court that he had been telling hisattorney that he no longer wanted to be represented by him for the last three months.When asked why, defendant conveyed that he did not trust any court-appointed attorney.Defendant reconfirmed his unequivocal desire to represent himself just prior to juryselection. Absent any evidence that defendant's request obstructed the proceedings or ledto "delay [or] confusion," and considering defendant's expressed desire to be allowed torepresent himself, we find that Supreme Court did not abuse its discretion in consideringthe merits of defendant's request (People v McIntyre, 36 NY2d at 17; seePeople v Dashnaw, 116 AD3d at 1231).
As to the second element, in order "[t]o ascertain whether a waiver [of the right tocounsel] is knowing, voluntary and intelligent, a court must undertake a searchinginquiry designed to insure that the defendant is aware of the dangers and disadvantagesof proceeding without counsel" (People v Crampe, 17 NY3d 469, 481 [2011][internal quotation marks, brackets and citations omitted], cert denied 565 US&mdash, 132 S Ct 1746 [2012]; see People v Guarnieri, 122 AD3d 1078, 1080 [2014]).Prior to granting defendant's request in this case, Supreme Court repeatedly "warn[ed]. . . defendant of the risks inherent in proceeding pro se" and informed himthat proceeding without counsel would greatly increase his chances of being convicteddue to his lack of familiarity with the legal system (People v Crampe, 17 NY3d at482 [emphasis omitted]; compare People v Guarnieri, 122 AD3d at 1080). Thecourt also conducted a thorough inquiry as to " 'defendant's age, education,occupation, previous exposure to legal procedures and other relevant factors bearing on acompetent, intelligent, voluntary waiver' " (People v Dashnaw, 116AD3d at 1232, quoting People v Arroyo, 98 NY2d 101, 104 [2002]). We findthat Supreme Court did not abuse its discretion in electing not to undertake aparticularized assessment of defendant's mental capacity (see People v Stone, 22 NY3d520, 528 [2014]). Defendant's assertions during the trial that he was framed in ascheme orchestrated by the police, while eccentric, were "not necessarily indicative ofmental impairment" (id.). Relatedly, with regard to the final element, we do notfind that defendant's conduct during the proceedings "prevent[ed] the fair and orderlyexposition of the issues" (People v McIntyre, 36 NY2d at 17; see People vStone, 22 NY3d at 528-529). Accordingly, Supreme Court properly granteddefendant's request to proceed pro se with standby counsel (see People v Stone,22 NY3d at 528-529; People v Dashnaw, 116 AD3d at 1232-1233; People v Yu-Jen Chang, 92AD3d 1132, 1133-1134 [2012]).
Defendant's argument that Supreme Court should not have admitted the audiorecordings of his phone conversations with the CI because they were inaudible isunpreserved, as defendant neither moved for an audibility hearing nor otherwise objectedto admission of the recordings at trial (see People v Morris, 32 AD3d 561, 561-562 [2006], lvdenied 7 NY3d 869 [2006]; People v Bailey, 12 AD3d 377, 377 [2004], lvdenied 4 NY3d 741 [2004]). In any event, this contention is without merit given thatsuch audibility problems do not preclude meaningful review, and the CI testified as totheir contents during the trial (see People v Morris, [*4]32 AD3d at 561-562; People v Lewis, 25 AD3d 824, 827 [2006], lvdenied 7 NY3d 791 [2006]).
Finally, defendant's sentence, which is less than the maximum authorized (seePenal Law §§ 70.70 [2] [a] [i], [ii]; 110.00, 110.05, 220.16 [1]; 220.39[1]), is neither harsh nor excessive given his criminal history, and we discern no evidencein the record that Supreme Court improperly penalized defendant for rejecting the pleadeal and exercising his right to trial (see People v Merritt, 96 AD3d 1169, 1172 [2012], lvdenied 19 NY3d 1027 [2012]). Defendant's remaining arguments, including those setforth in his pro se brief, have been examined and found to be lacking in merit.
Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment is affirmed.