| People v Magee |
| 2016 NY Slip Op 00399 [135 AD3d 1176] |
| January 21, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMaurice Magee, Appellant. |
Brian M. Quinn, Albany, for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Matthew D. Burin of counsel),for respondent.
Lynch, J. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered January 8, 2014, upon a verdict convicting defendant of the crime ofcriminal sale of a controlled substance in the second degree.
Defendant and Gerald Colombe were charged in an indictment with criminal sale ofa controlled substance in the second degree, attempted criminal sale of a controlledsubstance in the second degree and conspiracy in the second degree after an incident inMay 2013 during which Colombe offered to sell cocaine to Anthony Bruno, anundercover investigator with the Warren County Sheriff's Office, in the parking lot of aWalmart. Colombe pleaded guilty, absconded and was returned to Warren County in timeto testify against defendant at the end of the trial. The jury found defendant guilty ofcriminal sale of a controlled substance in the second degree.[FN*] He was thereafter sentenced, as asecond felony drug offender, to a prison term of 12 years, with five years of postreleasesupervision. Defendant appeals.
[*2] Defendant first maintains that his conviction was not supported by legally sufficientevidence establishing that he "knowingly and unlawfully" participated in Colombe's offerto sell the cocaine to Bruno (Penal Law § 220.41 [1]; see Penal Law§ 220.00 [1]). "A conviction is legally insufficient where, viewing therecord in the light most favorable to the prosecution, there is no valid line of reasoningand permissible inferences from which a rational jury could have found the elements ofthe crime proved beyond a reasonable doubt" (People v Maldonado, 24 NY3d 48, 53 [2014] [internalquotation marks and citations omitted]). It is established that "[a] conviction for criminalsale does not require that an actual sale be consummated; under Penal Law§ 220.00 (1), a 'sale' includes an offer to sell or exchange drugs. However,in order to support a conviction under an offering for sale theory, there must be evidenceof a bona fide offer to sell—i.e., that defendant had both the intent and the abilityto proceed with the sale" (People v Mike, 92 NY2d 996, 998 [1998] [citationsomitted]; see People v Samuels, 99 NY2d 20, 23-24 [2002]; People v Vargas, 72 AD3d1114, 1117 [2010], lv denied 15 NY3d 758 [2010]; People v Crampton, 45 AD3d1180, 1181 [2007], lv denied 10 NY3d 861 [2008]). Intent necessarily isdetermined by a defendant's statements and conduct (see People v Samuels, 99NY2d at 24). Also pertinent here is that "[a] defendant may not be convicted of anyoffense upon the testimony of an accomplice unsupported by corroborative evidencetending to connect the defendant with the commission of such offense" (CPL 60.22[1]).
The event was partially captured through audio and video recording devices utilizedby Bruno, who prearranged the sale with Colombe, as well as footage from Walmart'ssecurity cameras. After parking his vehicle, Bruno walked to defendant's nearby car,opened the rear passenger door and sat in the back seat. Colombe was in the frontpassenger seat and defendant was behind the wheel. A conversation ensued betweenColombe and Bruno, as Bruno handed $1,050 in cash to Colombe. Simultaneously,defendant began to drive the car toward the Walmart entrance. Colombe counted themoney out loud and appeared to try to hand the money to defendant, who simplycontinued to drive without speaking. Moments later, defendant stopped the car, got outand entered the store. Shortly thereafter, defendant returned to the car, tapped thewindow and walked back into the store followed by Colombe. At this point, Brunocommunicated to the backup officers that he recognized defendant and suspected that hiscover was blown. Colombe returned to the car, opened the front passenger door, peeredin and directly asked Bruno whether he was a police officer. At this point, defendantremained in the entranceway looking out towards his car. After a brief exchange,Colombe instructed Bruno to walk back to his own car where they would complete thetransaction. Moments after defendant got back in the car, Bruno got out. As Brunoapproached his own car, Colombe was walking away, having placed the $1,050 underthe windshield. Colombe and defendant then sped away in defendant's car and wereeventually apprehended by the pursuing officers. Two baggies of cocaine were foundalong the roadway and a witness testified that he saw the passenger throw two whiteobjects out of the window as the vehicle sped by. Forensics established that the bagscontained 17 grams of cocaine.
Colombe testified that he contacted defendant to supply the cocaine for the sale toBruno. He explained that the money would go to defendant, and that his take was toreceive seven grams of cocaine from defendant. Asserting that defendant would not trusthim with handling the cocaine, Colombe utilized defendant's cell phone to call Brunoand change the plan by having Bruno come into defendant's car. Colombe testified thathe counted the money out loud for defendant's sake and, upon confirming that Brunopaid the required amount, stated, "Maurice it's a wrap." When asked to explain hisactions in the video, Colombe stated that he said "here" and that he "tried to hand[defendant] the money." Colombe further explained that he did not know why defendantdid not take the money, or why he left the car. Colombe testified [*3]that when he exited the car in response to defendant's tapon the window, defendant advised him that Bruno was a police officer and told Colombeto get Bruno out of the car and put the money on Bruno's windshield. During whatColombe described as a "high speed chase," he stated that defendant took the cocaine outof his pocket and told Colombe to throw it out the passenger window. Colombecomplied.
For his part, Bruno testified that the sale was prearranged with Colombe and that,shortly before they were to meet, Colombe called on defendant's cell phone to instructBruno to get in the back seat of defendant's car. Bruno explained that right after hehanded the money to Colombe, he made eye contact with defendant through the rearviewmirror and recognized defendant from prior dealings. Bruno testified that after the moneywas counted, he heard Colombe ask defendant "if he was basically trying to get awayfrom the cameras," to which defendant responded "yeah, just a minute . . . Iwill be right back." Bruno testified that when defendant returned to the car, Colombesaid, before exiting, that "he is going to hand it to me. He doesn't know you."
Without question, Colombe fully implicated defendant as the moving force behindthis transaction. The further question is whether there is corroborating evidence to showthat defendant acted with the intent to pursue the sale. Clearly, defendant was present inthe car with Colombe when Bruno entered the back seat. Colombe also used defendant'scell phone to change the transaction format shortly before Bruno arrived. Since therecord shows that Colombe did not have either a car or a phone, a jury could readily inferthat defendant drove Colombe to the meeting place and allowed Colombe to use hisphone (compare People v Lanza, 57 NY2d 807 [1982]). That said, there is noevidence that defendant was involved in the preliminary conversations between Colombeand Bruno setting up the sale. Nor did defendant in any way interact with Bruno orColombe while in the car during the money exchange. The video actually shows thatdefendant immediately began to drive after Bruno entered the car and neither touched themoney nor uttered a single word related to the transaction. Defendant exited the carwithin a minute, but his reasons for doing so may readily be explained by Bruno'stestimony that they made eye contact and knew each other. Given this sequence, a jurycould also readily infer that defendant informed Colombe that Bruno was a police officerbased on defendant's own actions in waiting back and observing Colombe return to thecar and Colombe's direct confrontation with Bruno as to whether he was a police officer.Not to be overlooked is that defendant drove Colombe back to the initial meeting area,waited for Colombe to place the money on Bruno's windshield and then took off at ahigh rate of speed.
Viewing this evidence in a light most favorable to the People, we find that a jurycould validly conclude that defendant intended to proceed with the sale and onlyterminated the sale after recognizing Bruno. We therefore find that the evidence waslegally sufficient to prove the element of intent (compare People v Samuels, 99NY2d at 23-24; People v Mike, 92 NY2d at 998; People v Vargas, 72AD3d at 1117; People v Crampton, 45 AD3d at 1181). Moreover, viewing thisproof in a neutral light and according deference to the credibility determinations of thejury, we do not find the verdict was against the weight of the evidence (see People v Reome, 15 NY3d188, 191-192 [2010]; People v Cruz, 131 AD3d 724, 725 [2015]). The jury wasaware of the favorable plea agreement that Colombe negotiated, that he admittedly useddrugs prior to the transaction and of his criminal background, and it could utilize itscollective judgment to assess his credibility (see People v Nicholas, 130 AD3d 1314, 1315 [2015]; People v Richards, 124 AD3d1146, 1147 [2015], lv denied 25 NY3d 992 [2015]; People v Wingo, 103 AD3d1036, 1037 [2013], lv denied 21 NY3d 1021 [2013]).
We further reject defendant's contention that his cell phone was illegally searchedand [*4]seized based on a delayed warrant. Generally,police must obtain a warrant before searching the contents of a cell phone seized from anindividual who has been arrested (see Riley v California, 573 US &mdash,&mdash, 134 S Ct 2473, 2493-2494 [2014]). Here, the People procured a search warranton September 24, 2013, allowing full access to defendant's cell phone and data pertinentto the use of the phone during the commission of the underlying crime. At the time thewarrant was signed, the cell phone was being held as part of defendant's personalproperty at the Warren County Correctional Facility. In our view, the warrant sufficientlynarrowed the search (see United States v Ganias, 755 F3d 125, 134-135 [2d Cir2014], reh en banc granted 791 F3d 290 [2015]; United States v Galpin,720 F3d 436, 445-446 [2d Cir 2013]). While the warrant was issued four months afterdefendant's arrest, the delay did not render the search unreasonable (see United Statesv Christie, 717 F3d 1156, 1162-1163 [10th Cir 2013]; United States vStabile, 633 F3d 219, 235-236 [3d Cir 2011], cert denied 565 US &mdash,132 S Ct 399 [2011]). In any event, while the entire media content of the cell phone wasadmitted into evidence, only a few text messages relating to defendant's financialcondition were actually presented to the jury. There is no indication in this record thatany of the potentially inflammatory images and videos included on the disc containingthe phone content were shown to the jury.
We do, however, find merit to defendant's claim that he was deprived of a fair trialdue to the erroneous admission of evidence indicative of prior illegal behavior. The focushere is on the testimony of defendant's acquaintance, Taylor Aubin, who described a tripshe took with defendant to New York City in April 2013. They arrived at about 11:30p.m. and met a person named Ty and his girlfriend on a sidewalk. After a briefconversation, the four drove in defendant's car to a nearby building. Defendant then hadAubin count $6,000 in cash, which he handed over to Ty. Ty went into a building andreturned to the car about 45 minutes later. Ty then drove the group to his house, wheredefendant and Aubin stayed for a brief period and then left to return home, arriving atabout 6:00 a.m. Aubin also testified how defendant later complained that Ty wasbothering him to repay a debt, that he was not working and that he needed money to paya lawyer. She also loaned defendant $670 and was repaid $600.
The stated purpose of this testimony was to demonstrate that defendant had afinancial motive for the cocaine sale to Bruno. Evidence of prior bad acts or unchargedcrimes may be admissible to show motive to commit a crime under one of the traditionalMolineux exceptions—where the probative value exceeds its prejudicialeffect (see People v Molineux, 168 NY 264, 293 [1901]). That said, "there isusually no issue of motive in a drug sale case, as the seller's motivation is nearly alwaysfinancial gain" (People vWilkinson, 71 AD3d 249, 255 [2010]; see generally People v Alvino, 71NY2d 233, 242-243 [1987]). Moreover, "[e]vidence of similar uncharged crimes hasprobative value, but as a general rule it is excluded for policy reasons because it mayinduce the jury to base a finding of guilt on collateral matters or to convict a defendantbecause of his [or her] past" (People v Alvino, 71 NY2d at 241; see People v Nicholas, 130AD3d 1314, 1316 [2015]). The Aubin story is highly suggestive of an illicit drugtransaction, and it is difficult to discern any relevant impact other than to showdefendant's criminal propensity. As this case largely turned on Colombe's credibility, wecannot characterize the error in admitting this evidence as harmless, notwithstandingCounty Court's curative instruction (see People v Gray, 125 AD3d 1107, 1109 [2015]; People v Allen, 13 AD3d892, 894 [2004], lv denied 4 NY3d 883 [2005]). Accordingly, we mustreverse defendant's judgment of conviction and remit for a new trial. Given this outcome,defendant's remaining contentions have been rendered academic.
Garry, J.P., Rose, Devine and Clark, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Warren County for anew trial.
Footnote *:While defendant movedprior to opening statements to dismiss the conspiracy count as jurisdictionally defective,County Court did not grant the motion until just prior to Colombe's testimony, on consentof the People.