| People v Slade |
| 2015 NY Slip Op 08252 [133 AD3d 1203] |
| November 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vHandy Slade, Appellant. |
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered March 25, 2010. The judgment convicted defendant, upon a jury verdict, ofcriminal sale of a controlled substance in the third degree, criminal possession of acontrolled substance in the third degree and criminally using drug paraphernalia in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reversing those parts convicting defendant of criminal possession of acontrolled substance in the third degree and criminally using drug paraphernalia in thesecond degree and as modified the judgment is affirmed, and a new trial is granted oncounts two and three of the indictment.
Memorandum: On appeal from a judgment convicting him following a jury trial ofcriminal sale of a controlled substance in the third degree (Penal Law§§ 20.00, 220.39 [1]), criminal possession of a controlled substance inthe third degree (§§ 20.00, 220.16 [1]), and criminally using drugparaphernalia in the second degree (§§ 20.00, 220.50 [2]), defendantcontends that the evidence is legally insufficient to establish his liability as an accessoryor his constructive possession of the drugs and drug paraphernalia. Defendant failed topreserve that contention for our review inasmuch as he failed to make a motion for a trialorder of dismissal specifically directed at those alleged insufficiencies (see People v Beard, 100 AD3d1508, 1509 [2012]; Peoplev Goodrum, 72 AD3d 1639, 1639 [2010], lv denied 15 NY3d 773[2010]; see generally People v Gray, 86 NY2d 10, 19 [1995]). In any event, weconclude that defendant's contention is without merit inasmuch as there is a "valid line ofreasoning and permissible inferences which could lead a rational person to theconclusion reached by the jury on the basis of the evidence at trial" (People vBleakley, 69 NY2d 490, 495 [1987]).
"To establish an acting-in-concert theory in the context of a drug sale, the Peoplemust prove not only that the defendant shared the requisite mens rea for theunderlying crime but also that defendant, in furtherance of the crime, solicited, requested,commanded, importuned or intentionally aided the principal in the commission of thecrime . . . Although the case law discussing these criteria is somewhatfact-specific, integral to each inquiry is whether a defendant exhibited any calculated ordirect behavior that purposefully affected or furthered the sale of the controlled substance. . . The key to our analysis is whether a defendant intentionally and directlyassisted in achieving the ultimate goal of the enterprise—the illegal sale of anarcotic drug" (People v Bello, 92 NY2d 523, 526 [1998]; see People vKaplan, 76 NY2d 140, 144-145 [1990]). Here, the evidence and the reasonableinferences drawn therefrom establish that defendant intentionally and directly assistedanother in the sale of cocaine to an undercover officer by removing barricades on thedoor to the residence to allow the officer to enter the apartment, standing guard at thedoor during the officer's transaction with the principal, acting as a lookout during the saleby looking out the peephole of the door to the residence, letting the officer out of thedoor and securing that door upon the officer's exit from the residence. We conclude thatsuch evidence, viewed in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), is legally sufficient to establish defendant's guiltas an accessory to the sale of a controlled substance (see e.g. People v Eduardo, 44 AD3d 371, 372 [2007],affd 11 NY3d 484 [2008]; People v Rivera, 250 AD2d 423, 423 [1998],lv denied 92 NY2d 904 [1998]; People v Fuentes, 246 AD2d 474, 474[1998], lv denied 91 NY2d 941 [1998]; People v Lopez, 200 AD2d 525,525 [1994], lv denied 83 NY2d 1005 [1994]). "Acting as a lookout is calculatedbehavior that furthers a drug sale by ensuring that the sale is not interrupted and thebuyer and seller are not apprehended" (People v Mondon, 30 Misc 3d 1235[A], 2011 NY Slip Op50369[U], *2 [2011]).
We further conclude that, based on the evidence admitted at trial, the evidence islegally sufficient to establish that defendant had constructive possession of the drugs anddrug paraphernalia found in the residence. " 'Where, as here, defendant is notfound in actual possession of drugs [that] were not in plain view, the People mustestablish his [or her] constructive possession . . . with proof supporting theconclusion that he [or she] exercised dominion and control over the [area where thedrugs were found]' " (People v Archie, 78 AD3d 1560, 1561 [2010], lvdenied 16 NY3d 856 [2011]; see generally People v Manini, 79 NY2d 561,573-574 [1992]). Here, the evidence admitted at trial established that defendant was aresident or occupant of the apartment who had control of the premises, and the fact thatlarge quantities of narcotics and paraphernalia associated with narcotics were found inthe heating vents of the residence "permitted the reasonable inference that defendant hadboth knowledge and possession of the narcotics [and paraphernalia]" (People vTirado, 47 AD2d 193, 195 [1975], affd 38 NY2d 955 [1976]; see Peoplev Diaz, 220 AD2d 260, 260-261 [1995]; see also People v Turner, 27 AD3d 962, 963 [2006]).
Viewing the evidence admitted at trial in light of the elements of the crimes ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we further conclude that the verdict is notagainst the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Although we have concluded that the conviction is based on legally sufficientevidence and that the verdict is not against the weight of the evidence, we agree withdefendant that Supreme Court erred in admitting in evidence an oral statement ofdefendant for which no CPL 710.30 notice had been given. The statement at issue wasdefendant's response to a question about where he resided. The statement was madewhile police officers were executing a search warrant at the apartment and whiledefendant, who was wearing only a pair of shorts, was handcuffed and lying on the floor.At that point, one of the officers began to complete a prisoner data report. When theofficer asked defendant where he resided, defendant responded, "here."
Generally, a defendant's answer concerning his address, when "elicited throughroutine administrative questioning that [is] not designed to elicit an incriminatingresponse" (People v Watts, 309 AD2d 628, 629 [2003], lv denied 1 NY3d582 [2003]; see generally People v Rodney, 85 NY2d 289, 292-293 [1995]), willbe considered pedigree information not subject to CPL 710.30 notice requirements evenif the statement later proves to be inculpatory (see People v Perez, 198 AD2d540, 542 [1993], lv denied 82 NY2d 929 [1994]). That is "[b]ecause responses toroutine booking questions—pedigree questions . . .—are notsuppressible even when obtained in violation of Miranda [and, therefore, a]defendant lacks a constitutional basis upon which to challenge the voluntariness of his[or her] statement" (Rodney, 85 NY2d at 293). "[W]here there is no question ofvoluntariness, the People are not required to serve defendant with notice"(id.).
As the Court of Appeals recognized, however, "the People may not rely on thepedigree exception if the questions, though facially appropriate, are likely to elicitincriminating admissions because of the circumstances of the particular case"(id.). Although the question concerning defendant's address appears to have beena facially appropriate question, we conclude that, under the circumstances of this caseand, more specifically, under the circumstances in which the question was asked, thequestion was likely to elicit an incriminating admission and had a "necessary connectionto an essential element of [the possessory] crimes charged" under Penal Law§§ 220.16 and 220.50 (2) (People v Velazquez, 33 AD3d 352, 354 [2006], lvdenied 7 NY3d 929 [2006]). We agree with defendant that the error in admitting thatstatement cannot be considered harmless insofar as it relates to the possessory counts ofthe indictment inasmuch as the People relied heavily on that statement to establishdefendant's constructive possession of the drugs and drug paraphernalia (cf. People v Baker, 32 AD3d245, 250 [2006], lv denied 7 NY3d 865 [2006]). We therefore modify thejudgment by reversing those parts convicting defendant of criminal possession of acontrolled substance in the third degree and criminally using drug paraphernalia in thesecond degree, and we grant a new trial on those counts of the indictment (see People v Kims, 96 AD3d1595, 1597 [2012], affd 24 NY3d 422 [2014]). We reach a contraryconclusion with respect to the sale count of the indictment and conclude that any error inthe admission of defendant's statement was harmless with respect to that count. Theevidence in support of that count was overwhelming and "there is no reasonablepossibility that the introduction of [defendant's] statement[ ] at trial played a role in thejury's verdict" on that count (Baker, 32 AD3d at 250).
Contrary to defendant's final contention, insofar as it concerns the criminal salecount, i.e., the sole count of the indictment for which a new trial is not being ordered, thecourt did not err in denying his request for a circumstantial evidence charge. "Acircumstantial evidence charge is required [only] where the evidence against a defendantis 'wholly circumstantial' " (People v Guidice, 83 NY2d 630, 636 [1994];see People v Daddona, 81 NY2d 990, 992 [1993]; People v Smith, 90 AD3d1565, 1566 [2011], lv denied 18 NY3d 998 [2012]). Here, however,"[d]efendant was not entitled to a circumstantial evidence charge because the case didnot rest entirely on circumstantial evidence" (Lopez, 200 AD2d at 525)." 'Eyewitness testimony . . . established that defendant engaged inacts which directly proved that at the very least he acted as a lookout while the crime wasbeing committed' " (People v Jones, 306 AD2d 88, 88 [2003], lvdenied 100 NY2d 583 [2003], quoting People v Roldan, 88 NY2d 826, 827[1996]). Present—Centra, J.P., Peradotto, Lindley, Whalen and DeJoseph, JJ.