| People v Singleton |
| 2016 NY Slip Op 00394 [135 AD3d 1165] |
| January 21, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Derick L. Singleton, Appellant. |
Mark Diamond, Albany, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Chemung County(Hayden, J.), rendered November 22, 2013, upon a verdict convicting defendant of thecrime of criminal possession of a controlled substance in the third degree (twocounts).
On March 2, 2013, Jelene Peck was driving a vehicle with two passengers, WadeSmith and defendant, in the City of Elmira, Chemung County. A police officer observedan air freshener hanging from the rear view mirror that purportedly obstructed Peck'sview through the windshield (see Vehicle and Traffic Law § 375[30]), and he proceeded to stop the vehicle. A routine check determined that defendanthad active warrants against him and, as defendant was exiting the vehicle to be placedunder arrest, the officer observed a crack pipe on the floorboard. The officer obtainedPeck's consent to search the vehicle and discovered a small baggie of crack cocaine nearthe driver's side door, as well as three larger baggies of crack cocaine wedged betweenthe driver's seat and the center console.
Defendant, who had been sitting in the front passenger seat, was thereafter chargedin an indictment with two counts of criminal possession of a controlled substance in thethird degree. Following a Mapp hearing, his motion to suppress the evidencerecovered in the search of the vehicle was denied. The first trial on the indictment endedwhen the People elicited testimony violative of County Court's Molineux ruling,prompting defendant to successfully move for a mistrial. County Court held that a retrialwas not barred by double jeopardy and, at the conclusion of the second trial, defendantwas convicted as charged. County Court sentenced [*2]defendant, a second felony offender, to concurrent prisonterms of six years to be followed by postrelease supervision of three years. Defendantappeals, and we affirm.
Defendant contends that the second trial was barred by double jeopardy but, becausehe was the one who sought the mistrial, such would only be the case if "the prosecutiondeliberately provoke[d]" him into doing so (Matter of Davis v Brown, 87 NY2d626, 630 [1996]; see Matter ofGorghan v DeAngelis, 7 NY3d 470, 473 [2006]; Matter of Phillips v Carnright,66 AD3d 1319, 1320 [2009]). In that regard, Peck was expected to testify that sheand Smith had known defendant for about six months before March 2013, and that theyoften gave defendant rides. County Court issued a Molineux ruling barring thePeople from eliciting testimony revealing that defendant paid for those rides with crackcocaine. Peck made no mention of the prior exchanges of drugs during her testimony atthe first trial, but Smith answered a vague question about "the nature of [his]relationship" with defendant by saying that "[i]t was strictly cocaine." There is noindication in the record that the People asked this question in a gambit to goad defendantinto moving for a mistrial due to fear that "the case [was] headed toward acquittal," a fearthat would have been misguided given the evidence already introduced that defendanthad possessed a large quantity of crack cocaine and other items indicating that he wasinvolved in the drug trade at the time of the traffic stop (Matter of Davis vBrown, 87 NY2d at 630; see Matter of Phillips v Carnright, 66 AD3d at1320; People v Stewart, 57AD3d 1312, 1313 [2008], lv denied 12 NY3d 788 [2009], certdenied 558 US 1116 [2010]). The questioning by the People may have beenindicative of intemperate advocacy "inten[ded] to secure a conviction," but "a new, fairtrial" is the proper remedy for such excesses (Matter of Gorghan v DeAngelis, 7NY3d at 474).
Count 2 of the indictment charged defendant with "knowingly and unlawfullypossess[ing]" crack cocaine "of an aggregate weight of one-half ounce or more," and heargues that his conviction on that count was against the weight of the evidence (PenalLaw § 220.16 [12]).[FN*] Defendant does not take issue with theproof presented to show that he knowingly and unlawfully possessed the cocaine which,in any case, is amply established by Peck's testimony. Defendant instead asserts thatproof of the aggregate weight is wanting, but a forensic scientist testified that he used ascale in good working order to determine that the cocaine found in two of the baggiesweighed "[a]pproximately 14.47 grams," well over the 14.17 grams equivalent to half anounce. He further testified that he did not weigh the cocaine in a third baggie, aslaboratory policy dictated that he "test [only] to the highest possible charge." Viewingthis proof in a neutral light and according appropriate deference to the credibilitydeterminations of the jury, we do not find the conviction on count 2 to be against theweight of the evidence (seePeople v Parker, 84 AD3d 1508, 1509-1510 [2011], lv denied 18 NY3d927 [2012]; People v Butler, 190 AD2d 743, 743-744 [1993], lv denied81 NY2d 968 [1993]). Moreover, inasmuch as sufficient proof was presented with regardto the weight of the cocaine, defense counsel was not ineffective in failing to specificallymove for a trial order of dismissal on that basis (see People v Card, 115 AD3d 1007, 1008-1009 [2014],lv denied 23 NY3d 961 [2014]).
Defendant next asserts that the officer who stopped the vehicle did not have probablecause to do so, and that the drugs recovered from that vehicle should have beensuppressed. County Court credited the suppression hearing testimony of the officer thathe stopped the vehicle after observing a large object, which he later identified as an airfreshener, hanging from the rear view mirror in a manner that could have prevented thedriver from seeing a vehicle through the windshield. Probable cause therefore existed tojustify the stop, even if one may [*3]reasonably wonderwhether the violation of Vehicle and Traffic Law § 375 (30) was "theprimary motivation of the officer" for making it (People v Robinson, 97 NY2d341, 349 [2001]; see People vBookman, 131 AD3d 1258, 1260-1261 [2015]; People v Rasul, 121 AD3d1413, 1415 [2014]).
Defendant lastly argues that County Court erred in sentencing him as a second felonyoffender, but that issue is unpreserved due to his failure to object at sentencing, and weperceive no reason to exercise our interest of justice jurisdiction to reverse or modify onthat issue (see CPL 470.15 [3] [c]; People v Lowell, 126 AD3d 1235, 1235 [2015], lvdenied 25 NY3d 1167 [2015]; People v Dixon, 118 AD3d 1188, 1189 [2014]).
Lahtinen, J.P., Garry, Rose and Lynch, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant appears toacknowledge that his challenge to the legal sufficiency of the evidence is unpreserved(see People v Hawkins, 11NY3d 484, 492 [2008]); regardless, "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" (People v Cruz, 131 AD3d 724, 725 [2015]).