| People v Reynoso-Fabian |
| 2015 NY Slip Op 08868 [134 AD3d 1141] |
| December 3, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Juan Reynoso-Fabian, Also Known as Carlos,Appellant. |
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered August 22, 2012, upon a verdict convicting defendant of the crimes ofcriminal possession of a forged instrument in the first degree (10 counts) and willfulpossession of cigarettes in packages bearing false, altered or counterfeited stamps.
In March 2011, defendant was charged in an amended 13-count indictment withnumerous crimes, including criminal possession of a forged instrument in the first degree(10 counts) and willful possession of cigarettes in packages bearing false, altered orcounterfeited stamps. The charges stemmed from an August 27, 2010 investigation andregulatory search of a variety store located on Central Avenue in the City of Albany,during the course of which investigators discovered, among other things, 10 sheets ofcounterfeit cigarette tax stamps. A search of defendant's vehicle on this date alsorevealed, among other things, packages of cigarettes bearing counterfeit tax stamps.Thereafter, in November 2011, defendant was charged in a separate indictment with asingle count of criminal possession of a forged instrument in the first degree arising outof an October 16, 2011 incident wherein defendant attempted to sell cigarettes bearingcounterfeit tax stamps to another local convenience store. The People's subsequentmotion to consolidate the indictments was granted, and the count contained in theNovember 2011 indictment became count 14 of the amended indictment.
[*2] Following the denial of defendant's motions tosuppress, among other things, the physical evidence seized in August 2010, the matterproceeded to trial, during the course of which defendant testified upon his own behalf. Atthe conclusion of the trial, the jury found defendant guilty of criminal possession of aforged instrument in the first degree (counts 1 through 10) and willful possession ofcigarettes in packages bearing false, altered or counterfeited stamps (count 11) andacquitted defendant of the remaining charges. Defendant's subsequent motion to set asidethe verdict was denied, and defendant thereafter was sentenced to an aggregate prisonterm of 3
Defendant initially contends that County Court erred in denying his varioussuppression motions, including his motion to suppress the physical evidence seized at thevariety store and from his vehicle on August 27, 2010 and a subsequent identificationmade of him with respect to the October 16, 2011 transaction. As to the August 2010search of the variety store, although both defendant and the People have briefed thisissue utilizing the standard probable cause analysis, the investigators testified, andCounty Court found, that the search of the premises constituted a regulatory search underTax Law § 474 (4). In this regard, the statute authorizes the Commissionerof Taxation and Finance "to examine the books, papers, invoices and other records ofany person in possession, control or occupancy of any premises where cigarettes ortobacco products are placed, stored, sold or offered for sale, . . . as well asthe stock of cigarettes or tobacco products in any such premises or vehicle" (Tax Law§ 474 [4]; see generally People v Quackenbush, 88 NY2d 534,541-542 [1996]). Where, as here, the stock to be inspected and examined is located at aretail outlet where cigarettes are sold, the investigators may "insist[ ], in a nonforciblemanner, on entry into a locked storeroom, provided they reasonably believe[ ] itcontain[s] cigarettes" (People v Rizzo, 40 NY2d 425, 429 [1976] [citationomitted]; see People v Sciacca, 45 NY2d 122, 128 [1978]). The authority toconduct an administrative search of this nature "must be carefully limited in time, placeand scope" (People v Rizzo, 40 NY2d at 428) and does not extend to areas wherethe investigators have no reason to believe that "controlled activity [is] taking place"(People v Sciacca, 45 NY2d at 128). Hence, our inquiry distills to whether theinvestigators here exceeded the scope of the authority conferred upon them by Tax Law§ 474 (4).
Anthony Vona, a criminal investigator for the Department of Taxation and Finance,testified that the Department received a complaint from an industry source that thevariety store "had untaxed cigarettes in the back of the store" and that someone there was"stamping their own cigarettes with counterfeit stamps." Upon arriving at the locationwith fellow investigator Holly Stah, Vona spoke with defendant, who identified himselfas the owner of the store and indicated that no one else was on the premises. As Stahspoke with defendant about obtaining invoices for the products located behind thecounter, Vona walked to the rear of the store, where he observed a partition and a doorleading to a back room. Through a gap in the door frame, Vona saw a quantity ofbrand-name cigarettes on the floor. When Vona informed defendant that he would needaccess to the back room, defendant's demeanor immediately changed; according to Vona,defendant became very nervous, began making phone calls—inSpanish—where cigarettes were discussed, changed his status from store owner tostore manager, claimed that the back room was locked and instructed the investigatorsthat they would need to return later when the owner arrived with a key.
Vona and defendant then walked to the rear of the store, where Vona stated todefendant, "[L]ook, I can see cigarettes clear[ly] in this back room; you're going to needto open this door." As this conversation was taking place, Vona heard movement in theroom; defendant then opened the door—without a key—and Vonadiscovered another individual, identified by [*3]defendant as his "helper," in the back room.[FN1] The cigarettes that Vonahad observed only moments earlier were now covered by a blanket orclothing;[FN2] whenthis covering was removed, Vona found a "master case" of cigarettes, whichdefendant—as a retailer—was not authorized to have, as well as anotherhalf case of cigarettes, for a total of 90 cartons of cigarettes. Vona removed one of thecartons and confirmed that it did not bear the required tax stamp. At this point,defendant's anxiety increased and he began pacing, prompting Vona to contact hissupervisor to report the results of the inspection and to relay his concerns regardingdefendant's behavior. Citing defendant's erratic behavior and resulting safety concerns,Vona briefly placed defendant in handcuffs until backup could arrive. As the searchcontinued to unfold, investigators discovered, among other things, additional cases ofuntaxed cigarettes, as well as an iron that was believed to have been used to affixcounterfeit tax stamps, in the back room. The counterfeit tax stamps themselves werediscovered in a half bathroom immediately adjacent to the back room where the untaxedcigarettes were found and other merchandise packaged for sale was beingstored.[FN3]
Inasmuch as defendant was "operating a retail outlet where cigarettes were soldopenly and notoriously[,] [the investigators were authorized] . . . to enter thepremises and inspect the cigarettes for possible fraudulent stamping" (Mubarez vState of New York, 115 Misc 2d 57, 59-60 [Ct Cl 1982]; see People v Rizzo,40 NY2d at 428-429). While lawfully on those premises, Vona observed a quantity ofcigarettes—in plain view—through a crack in the door leading to a backroom, which was a "logical place to keep such additional stock" (Mubarez v State ofNew York, 115 Misc 2d at 60). Vona's observations, coupled with defendant'snervous demeanor, misrepresentations and suspicious behavior, provided theinvestigators with a reasonable basis upon which to demand access to this storagearea—where, among other things, a quantity of untaxed cigarettes werediscovered. Although the counterfeit tax stamps themselves were located in a halfbathroom off of this storage area, the half bathroom was immediately adjacent to theback room; additionally, Stah testified that the half bathroom was—based uponher observations—"probably not being used" for its intended purpose and, further,that the counterfeit tax stamps were recovered from the "same general area" as, amongother things, the untaxed cigarettes. Under these circumstances, we do not find that theinvestigators exceeded the permissible scope of their regulatory search (see People vSciacca, 64 AD2d 677, 680 [1978]; see also Mubarez v State of New York,115 Misc 2d at 59-60; compare People v Sciacca, 45 NY2d [*4]at 128-129; People v Rizzo, 40 NY2d at 429-430).Accordingly, County Court properly denied defendant's motion to suppress the evidenceseized from the variety store.
As for the subsequent search of defendant's van, one of the investigators testified atthe suppression hearing that, although defendant initially refused a request to search hisvehicle, he thereafter signed a written consent to search—a consent that theinvestigator read to defendant in its entirety in order to ensure that he understood thecontents thereof, including that portion of the document advising defendant that he wasnot required to consent to a search of the vehicle. County Court credited theinvestigator's testimony on this point and, upon reviewing the transcript of thesuppression hearing, we are satisfied that the People met their burden of establishing"that the consent was freely and voluntarily given based on the totality of thecircumstances" (People vWilliford, 124 AD3d 1076, 1078 [2015], lv denied 25 NY3d 1209[2015]).[FN4]
Nor are we persuaded that the photographic array shown to the individual to whomdefendant allegedly sold cigarettes on October 16, 2011 was unduly suggestive.Preliminarily, we note that defendant was acquitted of the charge relative to this incident,and the witness in question offered no testimony beyond the confines of this transaction.Hence, we are hard pressed to discern the impact of the allegedly flawed identificationprocedures upon defendant's convictions. That said, upon reviewing the testimonyoffered at the suppression hearing detailing the manner in which the array was preparedand presented to the witness in question, as well as the array itself, we are satisfied thatthe People met their initial burden of "establish[ing] the reasonableness of the policeconduct and the lack of any undue suggestiveness in [the] pretrial identificationprocedure" employed (People vSmith, 122 AD3d 1162, 1163 [2014] [internal quotation marks and citationsomitted]; see People vLanier, 130 AD3d 1310, 1312-1313 [2015], lv denied 26 NY3d 1009[2015]; People v Matthews,101 AD3d 1363, 1364 [2012], lv denied 20 NY3d 1101 [2013]). We areequally satisfied that defendant thereafter failed to meet his ultimate burden ofdemonstrating that the procedure utilized was unduly suggestive (see People vLanier, 130 AD3d at 1313; People v Matthews, 101 AD3d at 1364). Indeed,"[t]he physical characteristics of the people included in the [subject] array are sufficientlysimilar and the variations [are] not such as to create a substantial likelihood that. . . defendant would be singled out for identification" (People vMatthews, 101 AD3d at 1364 [internal quotation marks and citation omitted]).Accordingly, defendant's motion to suppress the identification was properly denied.
As for County Court's Sandoval and Molineux rulings,defendant—as so limited by his brief—ascribes error to the admission ofevidence regarding (1) his 2008 arrest for, among other things, possession of untaxedtobacco, (2) an allegedly fake sublease for the variety store entered into betweendefendant's purported girlfriend and a third party, and (3) his October 2011 sale ofuntaxed cigarettes to one of the witnesses who testified at trial. With respect todefendant's 2008 arrest in Schenectady County, County Court ruled that the People couldinquire as to whether defendant possessed untaxed tobacco for sale on the date inquestion, but that the People could not imply that defendant actually had been arrested,and no mention could be made of the subsequent disposition of those charges. Defendantraised no objection in this regard at the suppression hearing, stating that there werereasons why the defense would wish to explore this issue at trial, nor did he raise anyobjection when this testimony was elicited at trial. [*5]Accordingly, we deem this issue to be unpreserved for ourreview (see People v Tinning, 142 AD2d 402, 406 [1988], lv denied 73NY2d 1022 [1989]).[FN5]
With respect to the testimony that defendant sold untaxed cigarettes to anotherconvenience store owner on October 16, 2011, three points are worth noting. First,defendant did not raise a Molineux objection to such testimony at trial, nor did herequest any sort of limiting instruction. Additionally, even accepting defendant's premisethat such testimony constituted proof of an uncharged crime, which we do not, we aresatisfied that this testimony would fall within any number of the recognizedMolineux exceptions—including absence of mistake (see People vMolineux, 168 NY 264, 293 [1901]). Finally, inasmuch as defendant was acquittedof the charge to which this testimony most directly related (count 14 of the consolidatedindictment charging criminal possession of a forged instrument in the first degree), wefail to discern any resulting prejudice. We reach a similar conclusion regarding thechallenged sublease; even assuming that a document entered into between defendant'salleged girlfriend and a third party constitutes an uncharged crime or prior bad actattributable to defendant, we agree with County Court that such proof goes to defendant'sintent to commit the charged crimes. Accordingly, we reject defendant's assertion that hewas denied a fair trial due to the admission of the foregoing proof.
Finally, we find no merit to defendant's claim that the verdict is not supported bylegally sufficient evidence and/or is against the weight of the evidence. New Yorkimposes a tax on the possession of cigarettes intended for sale, the payment of which isevidenced "by means of an affixed cigarette tax stamp" (Tax Law § 471[1]). Only licensed individuals, referred to in the Tax Law as "agents" (Tax Law§ 470 [11]), are permitted to "purchase [cigarette tax] stamps and affix[them] . . . to packages of cigarettes to be sold within the state" (Tax Law§ 471 [2]). Insofar as is relevant here, it is a felony for a person to"knowingly and willfully possess[ ] any cigarettes in packages bearing . . .false, altered or counterfeited stamp[s]" (Tax Law § 1814 [g]). Relatedly,"[a] person is guilty of criminal possession of a forged instrument in the first degreewhen, with knowledge that it is forged and with intent to defraud, deceive or injureanother, he [or she] utters or possesses any forged instrument of a kind specified in[Penal Law § ] 170.15" (Penal Law § 170.30; see People v Batson, 103AD3d 910, 910 [2013], lv denied 21 NY3d 1013 [2013]), which includes"stamps . . . or other valuable instruments issued by a government" (PenalLaw § 170.15 [1]; see People v Batson, 103 AD3d at 910). As thePeople here proceeded upon a theory of constructive possession, they bore "the burden ofestablishing that defendant exercised dominion and control over the contraband or thearea where the contraband was found" (People v McGough, 122 AD3d 1164, 1166 [2014] [internalquotation marks and citations omitted], lv denied 24 NY3d 1220 [2015];see Penal Law § 10.00 [8]). "Such possession may be establishedthrough either direct or circumstantial evidence, and may be found even though othershave access to the contraband or the area where it is located" (People v Rodwell, 122 AD3d1065, 1067 [2014] [internal quotation marks and citation omitted], lv denied25 NY3d 1170 [2015]; seePeople v Perry, 116 AD3d 1253, 1254 [2014]).
[*6] At the start of the trial, the parties stipulated, amongother things, that the van parked at the rear of the variety store on August 27, 2010 wasregistered to defendant, that untaxed and unstamped (or unlawfully stamped) packages ofcigarettes were seized from the premises on that date and that the sheets of tax stampsseized therein were counterfeit. Hence, the dispositive issues before us center upondefendant's intent to deceive another, which may be inferred from the surroundingcircumstances (see People vBickley, 99 AD3d 1113, 1113-1114 [2012], lv denied 20 NY3d 1009[2013]), and the proof adduced relative to his exercise of dominion and control over theareas where the contraband was found. In this regard, without recounting the extensiveand detailed testimony regarding defendant's conduct on the day in question, theobservations made by the investigators on the scene and the product seized therefrom, weare satisfied that the verdict is supported by legally sufficient evidence and, further, is inaccord with the weight of the credible evidence—specifically with respect to theintent and possession elements of the charged crimes. To be sure, defendant attempted todownplay his role in the operation of the variety store, denied having access to or storinganything in the back room from which much of the product in question was seized andclaimed that he phoned Tolantino on the day in question solely in an effort to locate therecords requested by Stah. In the final analysis, however, the conflicting proof offered attrial "created credibility issues that the jury was entitled to, and obviously did, resolveagainst [defendant]" (People vMuniz, 93 AD3d 871, 874 [2012], lv denied 19 NY3d 965 [2012]).Defendant's remaining contentions, including his assertion that he improperly was deniedthe right to call certain witnesses and that the sentence imposed was harsh and excessive,have been examined and found to be lacking in merit.
Garry, J.P., Rose and Clark, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:Vona subsequentlytestified at trial that he could not recall whether it was defendant or his helper, identifiedas Donatilo Tolantino, who opened the door. Additional trial testimony also establishedthat defendant made a series of phone calls to Tolantino after the investigators arrived atthe store.
Footnote 2:Vona expanded on thisdiscussion at trial, describing how—when he gained access to theroom—the cigarettes that he had seen through the crack in the door "all of asudden . . . were gone." When Vona asked what had happened to thecigarettes, neither defendant nor Tolantino responded, after which Vona lifted up ablanket lying on the floor and discovered the missing product.
Footnote 3:Subsequent trialtestimony also documented the discovery of empty master case boxes stored behind thetoilet in this bathroom.
Footnote 4:The written consent tosearch form contained in the record on appeal—dated September 1,2010—does not appear to be the form that defendant executed in Stah's presenceon August 27, 2010.
Footnote 5:We note in passing thatshortly after reference to this incident was made at trial, County Court gave anappropriate limiting instruction to the jury, stating that the jury could consider such proofonly as to the issue of identification and that any testimony on this point could not beused to establish that defendant had a propensity to commit the crimes charged in theconsolidated indictment.