| People v Victor |
| 2016 NY Slip Op 03551 [139 AD3d 1102] |
| May 5, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Michael A. Victor Jr., Appellant. |
Ostrer & Associates, PC, Chester (Benjamin Ostrer of counsel), forappellant.
Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Chenango County(Sullivan, J.), rendered December 16, 2011, upon a verdict convicting defendant of thecrimes of criminal possession of a controlled substance in the second degree, criminalpossession of a controlled substance in the third degree (two counts), conspiracy in thesecond degree, criminal possession of a weapon in the second degree (three counts) andcriminal possession of a weapon in the third degree (three counts).
In January 2009, the Town of Norwich Police Department commenced aninvestigation into the sale of narcotics and centered its investigation around TonyaJenkins and her daughter, Currisa Jenkins (hereinafter Jenkins), defendant's paramour.During the investigation, several controlled buys of cocaine and heroin were made fromCassie Brooks, Tonya Jenkins and Jenkins. In March 2009, police obtained a searchwarrant for the residence of Jenkins (hereinafter the residence), which, upon execution,resulted in the arrest of Jenkins and defendant. Police searched the residence and seizedmarihuana, cocaine, several thousand dollars, multiple cell phones, a shotgun,ammunition, two cars, keys to a storage unit and keys to a vehicle not found at theresidence. As a result, defendant was charged by indictment with one count of criminalpossession of a controlled substance in the third degree.
In April 2009, based upon the storage unit and car keys seized during the search ofthe residence and upon recorded phone calls made by Jenkins while she was in jail,police obtained and executed a search warrant for a storage unit in the Town of Norwich,Chenango County that [*2]was rented by Jenkins andseized a Mercedes automobile, as well as a backpack containing narcotics, drugparaphernalia, weapons and ammunition. Defendant was subsequently charged in asecond indictment with criminal possession of a controlled substance in the seconddegree, criminal possession of a controlled substance in the third degree, conspiracy inthe second degree, criminal possession of a weapon in the second degree (three counts)and criminal possession of a weapon in the third degree (three counts). The indictmentswere thereafter consolidated. In 2010, Jenkins pleaded guilty to criminal possession of acontrolled substance in the fifth degree and was released from jail on the condition thatshe testify against defendant. Following a jury trial, at which Jenkins testified, defendantwas convicted as charged and sentenced to an aggregate prison term of 34 to 39 years.Defendant now appeals.
Defendant argues that his cell phone was illegally seized at the residence because thesearch warrant did not specifically refer to cell phones as an item to be seized. Wedisagree. The search warrant for the residence authorized, among other things, theseizure of "any records . . . pertaining to any illicit controlled substanceactivities or transactions" and "[a]ny computers, central processing units, external andinternal drives and external and internal storage equipment or media, terminals or videodisplay units . . . and any and all computing or data processing software, ordata including, but not limited to: hard disks, floppy disks, cassette tapes, video cassettetapes, magnetic tapes, integral ram or rom units, and any other permanent or portablestorage devices(s)." This language was sufficiently particular to allow the police toidentify a cell phone as an item to be seized pursuant to the warrant, inasmuch as a cellphone qualifies as a computer and/or storage device capable of maintaining records"pertaining to . . . illicit controlled substance activities or transactions" (People v Church, 31 AD3d892, 893-894 [2006], lv denied 7 NY3d 866 [2006]; see generally Peoplev Nieves, 36 NY2d 396, 401 [1975]).
Defendant also contends that the police did not listen to or obtain Jenkins' recordedjail telephone conversations, which formed the basis for the search warrant for thestorage unit, until after the warrant was executed and that County Court improperlydenied him a Alfinito/Franks hearing to challenge the veracity of the affidavitssubmitted in support of the application for that search warrant. The factual informationcontained in Officer Michael Purdy's supporting deposition, which was attached to thesearch warrant application, was based in part upon a recorded jail telephone conversationbetween Jenkins and another individual and set forth sufficient information to support areasonable belief that evidence of criminality would be found in the storage unit (see People v Pinkney, 90AD3d 1313, 1315-1316 [2011]; People v Church, 31 AD3d at 894).Defendant relies on Purdy's testimony at a pretrial suppression hearing to establish thathe was entitled to an Alfinito/Franks hearing. Although Purdy acknowledged atthat hearing that at least one of Jenkins' recorded conversations was obtained and listenedto after the warrant was executed, Purdy testified that the conversation referenced in hissupporting deposition was listened to prior to issuance of the warrant. As defendantfailed to satisfy his burden of proving that either the search warrant application for thestorage unit or Purdy's supporting deposition contained false statements that were madeknowingly, intentionally or recklessly to establish probable cause, County Court properlydenied his request for an Alfinito/Franks hearing (see People v Estrella, 48 AD3d1283, 1285-1286 [2008], affd 10 NY3d 945 [2008], cert denied 555US 1032 [2008]; People vFolk, 44 AD3d 1095, 1097 [2007], lv denied 9 NY3d 1006 [2007]; People v Richardson, 28 AD3d1002, 1005 [2006], lv denied 7 NY3d 817 [2006]; People v Griffin,234 AD2d 718, 720 [1996], lv denied 89 NY2d 1036 [1997]).
Additionally, with the exception of defendant's conviction on count 10 of theconsolidated indictment, criminal possession of a defaced weapon (see PenalLaw § 265.02 [3]), we are unpersuaded by defendant's contention that theverdict is against the weight of the [*3]evidence. Inconducting a weight of the evidence review, this Court must first determine whether adifferent conclusion would have been unreasonable and, if such conclusion would nothave been unreasonable, we then "weigh[ ] the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony while viewing the evidence in a neutral light and giving deference to the jury'scredibility assessments" (Peoplev Gibson, 121 AD3d 1416, 1418 [2014] [internal quotation marks omitted],lv denied 24 NY3d 1119 [2015]; see People v Romero, 7 NY3d 633, 643 [2006]).
Defendant specifically raises the issue of constructive possession as to the drugsfound in the shared residence and the items found in the storage unit, including 299grams of cocaine, digital scales with white powder residue, a 9 millimeter Luger pistol,TEC-9 model, a Colt Trooper .357 Magnum revolver and a Jennings .221r pistol."Constructive possession can be established by evidence that the defendant had dominionand control over the weapon [or drugs] or the area in which it was found" (People v Bellamy, 118 AD3d1113, 1114 [2014] [citation omitted], lv denied 25 NY3d 1159 [2015]; see People v Dawson, 110AD3d 1350, 1352 [2013], lv denied 23 NY3d 1035 [2014]). "Exclusiveaccess, however, is not required to sustain a finding of constructive possession"(People v Bellamy, 118 AD3d at 1114 [citation omitted]; see Penal Law§ 10.00 [8]; Peoplev Stewart, 95 AD3d 1363, 1364 [2012], lv denied 19 NY3d 1001[2012]). "Constructive possession of the drugs [or weapons] at issue may be establishedthrough circumstantial proof and 'any conflict in the evidence regarding [a] defendant'sdominion and control over the [drugs and weapons] in question . . .create[s] issues of witness credibility, and the jury's determination in that regard must beaccorded great deference' " (People v Crooks, 129 AD3d 1207, 1208-1209 [2015][citation omitted], lv granted 26 NY3d 966 [2015], quoting People vMcCoy, 302 AD2d 797, 797-798 [2003], lv denied 100 NY2d 540 [2003];see People v McLeod, 281 AD2d 746, 747 [2001], lv denied 96 NY2d921 [2001]).
Here, the trial testimony given by Purdy, Jenkins, Brooks and three other witnesseswho observed defendant's drug activity, along with the physical evidence recovered fromthe residence and the storage unit established defendant's role in the drug enterprise, aswell as his possession of narcotics, illegal weapons and ammunition. More particularly,with respect to counts 1 through 4, Purdy testified that, upon execution of the searchwarrant for the residence, police discovered roughly 2.88 grams of cocaine in a pair ofpants belonging to defendant. In addition, the testimony of Purdy and Jenkins establishedthat defendant acted in concert with Jenkins to possess over four ounces of cocaine, aclass A-II felony (see Penal Law § 220.18 [1]), and to store thatcocaine in the storage unit, which Jenkins rented at defendant's request so that both thedrugs and weapons would be removed from the residence (see People v Harris,288 AD2d 610, 617-618 [2001], affd 99 NY2d 202 [2002]; People vRodriguez, 274 AD2d 826, 827-828 [2000], lv denied 95 NY2d 938 [2000]).Jenkins testified at length about how she and defendant purchased the cocaine on aweekly basis in order to sell it for a profit.
As to defendant's constructive possession of the loaded firearms found in the storageunit (counts 5 through 7), Jenkins testified that she had previously observed defendant inpossession of several of the seized weapons and saw him place the weapons in thebackpack found inside of the trunk of the Mercedes. Jenkins' testimony in this regard wascorroborated by the testimony of Brooks, who stated that she had observed defendantpossess weapons, including some of the weapons found in the storage unit, and of PaulLaw, who testified that he had observed defendant in possession of the 9 millimeterLuger pistol, TEC-9 model. Furthermore, DNA evidence linked defendant to one of theweapons and defendant stated, during his telephone conversations in jail, that he wantedhis brother to retrieve his Mercedes from storage. Together, this evidence established thatdefendant exercised dominion and control over the items found in the storage unit(see People v Bellamy, 118 AD3d at 1114; People v Robinson, 72 AD3d 1277, [*4]1277-1278 [2010], lv denied 15 NY3d 809 [2010]).Thus, defendant's convictions on counts 1 through 7 are not against the weight of theevidence.
Defendant's convictions on counts 8 and 9 of the consolidated indictment aresimilarly not against the weight of the evidence. In addition to the foregoing evidencesupporting the convictions for criminal possession of a weapon in the second degree,Purdy's testimony established that the operable 9 millimeter Luger pistol, TEC-9 model,was found in the storage unit along with a large capacity ammunition feeding devicecapable of holding 30 rounds and that, therefore, the firearm constituted an assaultweapon (count 8) (see Penal Law §§ 265.02 [7]; 265.00 [22][c]). Purdy's testimony also established that the serial number on the 9 millimeter LugerPistol, TEC-9 model, found in the storage unit had been "scratched, etched. . . or ground off" (count 9).
In contrast, however, no evidence was presented to establish that the serial numberon the Colt Trooper .357 Magnum revolver had been defaced (count 10) (seePenal Law § 265.02 [3]). The photographs of the Colt Trooper .357Magnum revolver that were admitted into evidence do not reflect that the serial numberwas defaced, and Purdy's testimony at trial did not address the condition of the serialnumber on that revolver. Thus, defendant's conviction on count 10 of the consolidatedindictment must be reversed as against the weight of the evidence.
Defendant raises issues as to County Court's handling of three jurynotes—specifically, court exhibit Nos. 1, 3 and 5—and argues that thecourt's alleged mishandling of those notes constituted mode of proceedings errors. Wedisagree with defendant with respect to exhibits Nos. 1 and 3, but agree as to exhibit No.5.
Court exhibit No. 1 stated, "replay phone calls." Upon receiving the note, CountyCourt stated, "We have a question. The jury wants to hear the tapes. My understanding isthey want to hear all the tapes. And in the courtroom is defendant, attorneys, DistrictAttorney, everybody is in agreement that Deputy Chief Marsh will replay the tapes?" Noobjection was lodged and, after the jury returned to the courtroom and the jurors noddedyes in response to the court's query as to whether they wanted to hear all of therecordings, the recorded telephone calls were replayed.
Thereafter, the jury sent out another note, marked as court exhibit No. 3, whichstated, "Luger #5 # 9 assault." In the presence of defendant, counsel and the jury, CountyCourt addressed the jury, stating, "The note from the jury says Luger, No. 5 and No. 4 orNo. 9, I can't tell for sure, assaults. Do you want to see the exhibits? Do you want to haveme read definitions? Tell me what it is you'd like to have." Following a brief responsefrom juror No. 1, a request by the District Attorney to approach the bench with defensecounsel and an ensuing "[o]ff-the-record discussion at the bench with defendant present,"the court informed the jury that counts 5, 8 and 9 all related to the same Luger weaponand reread the jury charges for those counts. Thereafter, an exchange took place betweenthe court and juror No. 1. The court eventually stated, "These are conversations moreappropriate for . . . the jury[ ] to discuss in the privacy of . . .deliberations." Neither the People nor defense counsel objected or discussed theforegoing exchange with the court.
Later, the jury sent out another note, marked as court exhibit No. 5, which stated that"we have reach[ed] agreement on 9 of the 10 charges # 8G 4NG." Shortlythereafter—apparently while County Court was "discussing what to do with" courtexhibit No. 5 off the record—another note, marked as court exhibit No. 6, camefrom the jury stating, "Ready." Addressing the attorneys and defendant outside thepresence of the jury, County Court "indicate[d] for the record" that it had received a notefrom the jury stating, "We've reached [*5]agreement onnine out of the ten charged."[FN1] Defense counsel and the People agreedthat if the jury had a complete verdict, they were "ready to go," but that the court shouldsend the jury back for further deliberations if there was only a partial verdict. There wasno further discussion with respect to exhibit No. 5.
CPL 310.30 provides that a deliberating jury may request additional "instruction orinformation with respect to . . . any . . . matter pertinent to [its]consideration of the case" and that, "[u]pon such a request, the court must direct that thejury be returned to the courtroom and, after notice to both the [P]eople and counsel forthe defendant, . . . must give such requested information or instruction asthe court deems proper" (see People v O'Rama, 78 NY2d 270, 276 [1991]). "CPL310.30 thus imposes two separate duties on the [trial] court following a substantive jurorinquiry: the duty to notify counsel and the duty to respond" (id.; see People v Kadarko, 14NY3d 426, 429 [2010]). "[W]hen a trial court paraphrases a jury note or omits a keyterm, thereby failing to provide counsel with meaningful notice of the precise content ofa substantive juror inquiry, a mode of proceedings error occurs, and reversal is thereforerequired even in the absence of an objection" (People v Nealon, 26 NY3d 152, 157 [2015]; see People v Walston, 23NY3d 986, 989 [2014]; People v Tabb, 13 NY3d 852, 853 [2009]; People v Kisoon, 8 NY3d129, 135 [2007]). " 'Although not every violation of CPL 310.30 is immunefrom normal preservation principles, a failure to apprise counsel about the specificcontents of a substantive note from a deliberating jury violates the fundamental tenants ofCPL 310.30 and qualifies as a mode of proceedings error,' which does not requirepreservation" (People vCotton, 127 AD3d 778, 779 [2015], lv denied 25 NY3d 1200 [2015],quoting People v Silva, 24NY3d 294, 299-300 [2014]).
With respect to court exhibit Nos. 1 and 3, we find that, although County Court didnot follow the precise procedure outlined in People v O'Rama (supra) andits progeny, the court's particular deviations in handling these notes did not constitutemode of proceedings errors, and, thus, in the absence of any objection, the issues areunpreserved for our review (see People v Nealon, 26 NY3d at 158-162).However, with respect to court exhibit No. 5, we conclude that County Court committeda mode of proceedings error for which no objection was necessary (see People v Lane, 134 AD3d401, 402 [2015]). The court had an affirmative obligation to read exhibit No. 5verbatim so that the parties had the opportunity to accurately analyze the jury's questionand frame intelligent suggestions for the court's response (see People v Silva, 24NY3d at 299; People v Kisoon, 8 NY3d at 134). The record is devoid of anyinformation as to whether defendant knew about the portion of exhibit No. 5 stating "#8G 4NG."[FN2]Although the parties requested that the court inquire as to whether the jury had reached averdict and whether it was "complete," we cannot speculate as to what defendant knewabout exhibit No. 5 (see People v Walston, 23 NY3d at 990). Furthermore, "wecannot assume that the omission was remedied at [*6]anoff-the-record conference" (People v Smith, 133 AD3d 548, 549 [2015]). Accordingly,as County Court committed a mode of proceedings error as to exhibit No. 5, we mustremit for a new trial on counts 1 through 9 of the consolidated indictment.
Lastly, we address defendant's challenges to County Court's Molineux andSandoval rulings, as such issues may arise in the context of a new trial. As fordefendant's Molineux challenge, County Court did not abuse its discretion inpermitting evidence of defendant's uncharged drug crimes. Such evidence was relevant toestablishing defendant's motive and intent, his overall scheme or plan and to providenecessary background information and was more probative than prejudicial (see People v Johnson, 106AD3d 1272, 1274 [2013], lv denied 21 NY3d 1043 [2013]; People v Buchanan, 95 AD3d1433, 1436 [2012], lv denied 22 NY3d 1039 [2013]; People v Lynch, 63 AD3d959, 961 [2009]). As for defendant's challenge to County Court's Sandovalruling, we note that the court allowed the People to fully inquire into defendant's priorconvictions for criminal impersonation and unauthorized use of a motor vehicle andlimited the People's inquiry into defendant's prior convictions for resisting arrest andattempted reckless endangerment in the first degree by precluding any inquiry into thefacts underlying those convictions. Inasmuch as the prior crimes for which County Courtpermitted a full inquiry were not too remote in time, were dissimilar from the chargedcrimes and were probative of defendant's credibility and willingness to put his interestsabove that of the community, and given that County Court properly balanced theprobative value of defendant's prior convictions against the risk of prejudice todefendant, we cannot say that County Court's Sandoval ruling constituted anabuse of discretion (see People v Sandoval, 34 NY2d 371, 376-378 [1974];People v Buckley, 299 AD2d 417, 418 [2002], lv denied 99 NY2d 580[2003]; People v Williams, 243 AD2d 833, 837 [1997], lv denied 91NY2d 931 [1998]).
The balance of defendant's arguments do not require an extended discussion.Defendant failed to preserve his argument that the People violated the CommunicationsAct of 1934 and we decline to exercise our interest of justice jurisdiction with respectthereto. Were we to review this claim, we would find it unavailing. Defendant'sremaining contentions are rendered academic by our decision.
Peters, P.J., Garry, Egan Jr. and Rose, JJ., concur. Ordered that the judgment isreversed, on the law, count 10 of the consolidated indictment dismissed, and the matterremitted to the County Court of Chenango County for a new trial on the remaining ninecounts of the consolidated indictment.
Footnote 1:When County Court readthis note aloud to the attorneys outside the presence of the jury, it indicated, "CourtExhibit 5 says 'We've reached agreement on nine out of the ten charged.' "Although the handwriting is difficult to discern, it appears, based upon our review ofexhibit No. 5, that the note actually stated "nine out of the ten charges," rather than "nineout of the ten charged."
Footnote 2:The ambiguity of thenotation is also of concern to this Court.