| People v Peguero-Sanchez |
| 2016 NY Slip Op 05511 [141 AD3d 608] |
| July 13, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Julio Peguero-Sanchez, Appellant. |
Stephen N. Preziosi, New York, NY, for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Lauren Tan of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County(Condon, J.), rendered February 25, 2014, convicting him of criminal possession of acontrolled substance in the first degree and improper equipment of a vehicle (two counts)(Vehicle and Traffic Law § 375 [2] [a] [4]; [10] [a]), upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing, ofthat branch of the defendant's omnibus motion which was to suppress physicalevidence.
Ordered that the judgment is modified, on the law, by vacating the conviction ofimproper equipment of a vehicle under count two of the indictment (Vehicle and TrafficLaw § 375 [10] [a]), and the sentence imposed thereon, and dismissing thatcount of the indictment; as so modified, the judgment is affirmed.
At approximately 6:59 p.m. on November 10, 2011, the defendant was arrested in anApplebee's parking lot in Lindenhurst. He was charged with criminal possession of acontrolled substance in the first degree and improper equipment of a vehicle (two counts)(Vehicle and Traffic Law § 375 [2] [a] [4]; [10] [a]). At trial, the arrestingofficer and the defendant each testified and presented markedly different versions of thefacts prior to and after the arrest.
The arresting officer testified at a Mapp/Dunaway hearing (seeMapp v Ohio, 367 US 643 [1961]; Dunaway v New York, 442 US 200[1979]) and at trial that on the date of the incident, he was patrolling an area where therehad been public complaints about, and arrests for, drug dealing, when he observed aBMW vehicle (hereinafter the vehicle) with its engine running but with no illuminatedlicense plate. He also observed the defendant in the driver's seat. As the officer circledthe vehicle, he noticed that the vehicle did not have a rear-view mirror. The officertestified that when he made eye contact with the defendant, the defendant reclined hisseat and slid down in the seat. The officer parked his patrol vehicle, approached thedefendant's vehicle, and asked the defendant what he was doing. The defendant appearednervous and replied that he was meeting friends and going to Applebee's. The officerthen asked to see the defendant's driver license. After the defendant turned on the interiorlights of the vehicle to retrieve his driver license, the officer observed an open blackplastic bag between the defendant's feet. The officer observed, on top of the bag and inplain view, [*2]several sealed clear plastic bagscontaining "large white rock substances."
The defendant, in contrast, testified at trial that while he was walking to Applebee's,he was approached by the arresting officer, who asked for the defendant's driver license,made an inappropriate remark, and then placed the defendant under arrest. While thedefendant was seated in the patrol vehicle, the officer took the key to the defendant'svehicle from the defendant's pocket, opened the doors and trunk to the defendant'svehicle, and searched the vehicle. The defendant was advised 15 minutes later that hisarrest was for drugs. The defendant denied the presence of plastic bags in the vehicle,denied that his vehicle's rear-view mirror was missing, and denied any knowledge ofdrugs in the vehicle. The defendant explained that he often loaned the vehicle to theemployees of his barber business, but did not recall who had last borrowed it. He alsotestified that, minutes before his arrest, he had been texting his girlfriend about meetingher at Applebee's.
During the trial, the Supreme Court permitted the People, over the defendant'sobjection, to introduce as rebuttal evidence a chart of text messages that had beenretrieved from the defendant's cell phone. The text messages consisted of a conversationwith another person about a meeting, and language in the text messages indicated that theother person was a male referred to as "little brother."
At another point in the trial, a detective who inventoried the plastic bag recoveredfrom the defendant's vehicle testified, on cross-examination, that DNA on the bag couldhave belonged to anyone who the defendant had been "dealing with." The SupremeCourt denied the defendant's request for a mistrial based upon the detective'sstatement.
During summation, the prosecutor made reference to, without defense objection,"coded and secretive" language contained in the text messages recovered from thedefendant's cell phone. The defendant was convicted of criminal possession of acontrolled substance in the first degree and improper equipment of a vehicle (two counts)(Vehicle and Traffic Law § 375 [2] [a] [4]; [10] [a]).
On appeal, the defendant argues that the Supreme Court erred in failing, at thepre-trial hearing, to suppress the cocaine recovered at the scene of the arrest, and at trial,in admitting the chart of text messages as rebuttal evidence because they pertainedmerely to a collateral matter. The defendant also argues that his defense was prejudicedby the mention at trial of uncharged cocaine sale crimes, consisting of the detective'stestimony regarding who the defendant had been "dealing with" and the prosecution'ssummation implying that the defendant was a cocaine seller.
The Supreme Court properly denied that branch of the defendant's omnibus motionwhich was to suppress physical evidence. Where, as here, a police officer has probablecause to detain a motorist in his vehicle for a traffic violation, such a seizure isreasonable even though the underlying reason for the stop may have been to investigatesome other matter (see Whren v United States, 517 US 806 [1996]; People vRobinson, 97 NY2d 341 [2001]; People v Davis, 103 AD3d 810, 811 [2013]; People vOrtiz, 265 AD2d 579 [1999]; People v Dougherty, 251 AD2d 344 [1998]).In this case, the court's determination crediting the evidence presented by the People atthe Mapp/Dunaway hearing, that the defendant was lawfully detained fora traffic violation when the police officer observed cocaine in plain view on the floor ofthe vehicle in which the defendant was seated, is supported by the record. Accordingly,the cocaine was lawfully seized (see Wong Sun v United States, 371 US 471, 488[1963]; People v Edwards,82 AD3d 1005 [2011]).
Regarding the trial evidence, the text messages were properly admitted into evidenceon the People's rebuttal case and not to impeach the defendant's credibility on a mere"collateral" matter. The testimony of the arresting officer and the defendant were sodiametrically opposed to each other regarding the circumstances of the arrest that theycould not be reconciled absent a determination that one version was essentially true andthe other version essentially false. The arresting officer testified that the defendant toldhim that he was meeting friends and going to Applebee's. The defendant, in contrast,testified that, minutes before his arrest, he was texting his girlfriend about meeting her atApplebee's. The defendant also denied referring to his girlfriend as "brother." In the textmessages, the defendant referred to their recipient as "little brother," and the recipientreferred to the defendant as "old man." The language of the text messages corroborated[*3]the officer's testimony that the defendant had stated atthe scene that he was meeting friends at Applebee's and not, as the defendant hadtestified, texting his girlfriend. Since the defendant's overall testimony placed thearresting officer's credibility at issue, and the defendant had opened the door to the natureof the text messages, they were properly admissible on rebuttal for their probative valuein enabling the jury to assess the officer's credibility (see People v Harris, 57NY2d 335, 345 [1982]). Indeed, as noted by the Court of Appeals, rebuttal evidence is"not merely evidence which contradicts the witnesses on the opposite side andcorroborates those of the [rebutting] party who began, but evidence in denial of someaffirmative fact which the answering party has endeavored to prove" (id. at 345).Here, the arresting officer, through his testimony, sought to establish his conversationwith the defendant at the scene as part of the overall sequence of events, including thedefendant's representation at that time that he was waiting to meet friends at therestaurant. Thus, the text messages were properly admitted as rebuttal evidence tocorroborate the nature of that conversation which the defendant, during his owntestimony, had refuted.
Contrary to the defendant's contention, the detective's testimony oncross-examination regarding whom the defendant may have been "dealing with" did notaccuse the defendant of selling cocaine, for which he was not charged. Rather, thestatement, taken in context, necessarily and innocuously referred to the person fromwhom the defendant allegedly obtained the bags of cocaine.
The prosecutor's summation provides no basis for reversing the judgment. Defensecounsel made no objections during the summation and, thus, any summation-relatedarguments made on appeal are unpreserved (see CPL 470.05 [2]; People v Ricketts, 125 AD3d893 [2015]). In any event, contrary to the defendant's contentions, the prosecutor didnot argue that based on the text messages the defendant was a cocaine seller. Rather, theprosecutor appropriately argued that the coded language in the text messages helped toestablish that the defendant knowingly possessed cocaine, an offense with which he hadbeen charged, and helped to refute the defendant's contention that the cocaine had merelybeen unwittingly left in the car by one of his employees.
The People correctly concede that the defendant's conviction for violating Vehicleand Traffic Law § 375 (10) (a) cannot be sustained. An indictment mustprovide a defendant with fair notice of the charges against him or her (see People vKeindl, 68 NY2d 410, 416 [1986]; People v Morris, 61 NY2d 290, 293[1984]). Here, count two of the indictment failed to provide the defendant with fairnotice that he was being charged with violating Vehicle and Traffic Law§ 375 (10) (a). Accordingly, the defendant's conviction for a violation ofVehicle and Traffic Law § 375 (10) (a) must be vacated, and count two ofthe indictment dismissed.
The defendant's remaining contentions are without merit. Dillon, J.P., Dickerson andRoman, JJ., concur.
Austin, J., concurs in part and dissents in part, and votes to modify the judgment, onthe law, by vacating the conviction of improper equipment of a vehicle under count twoof the indictment (Vehicle and Traffic Law § 375 [10] [a]), and thesentence imposed thereon, and dismissing that count of the indictment, and by vacatingthe conviction of criminal possession of a controlled substance in the first degree, and thesentence imposed thereon, and remitting the matter to the Supreme Court, SuffolkCounty, for a new trial on that count of the indictment, and, as so modified, to affirm thejudgment, with the following memorandum, in which Barros, J., concurs: At the outset, Iagree that the evidence well establishes the defendant's guilt of criminal possession of acontrolled substance in the first degree. Where I part company with the majority is thatthe defendant did not receive a fair trial in reaching that conclusion. Accordingly, Irespectfully dissent and vote to reverse the defendant's conviction of that count and remitthe matter to the Supreme Court, Suffolk County, for a new trial on that count.
The defendant was charged and convicted of criminal possession of a controlledsubstance in the first degree and improper equipment of a vehicle (two counts) (Vehicleand Traffic [*4]Law § 375 [2] [a] [4]; [10][a]). The People correctly concede, and the majority notes, that the defendant'sconviction for violating Vehicle and Traffic Law § 375 (10) (a) cannot besustained, as count two of the indictment failed to provide the defendant with fair noticethat he was being charged with violating Vehicle and Traffic Law § 375(10) (a) (see People v Keindl, 68 NY2d 410, 416 [1986]; People vMorris, 61 NY2d 290, 293 [1984]). Thus, the defendant's conviction of that countmust be vacated, and count two of the indictment dismissed.
The charge of criminal possession of a controlled substance in the first degree wasprosecuted with the undeniable theme of criminal sale of a controlled substance.The cumulative effect of the cocaine dealing references in the unchecked testimony andproof, as well as the People's summation, warrants reversal. In addition, the admission ofa chart with unredacted, translated text messages from the defendant's cell phone, startingthe night before the arrest, purportedly setting up a meeting with a third-party male incoded language, unfairly prejudiced the defendant and greatly contributed to theimproper overarching criminal sale theme pursued by the prosecution.
At trial, the arresting officer testified that, on November 10, 2011, a few minutesbefore 7:00 p.m., he was patrolling a large shopping center in Lindenhurst, where therehad been complaints about, and arrests for, "drug dealing," when he spotted thedefendant's parked vehicle with its engine running. The arresting officer observed thatthe license plate light was not illuminated. The arresting officer also noticed that therear-view mirror was missing as he circled the defendant's vehicle in his own patrolvehicle.
When the arresting officer's unmarked patrol vehicle was approximately 10 feet awayfrom the defendant's vehicle, the defendant slid down in the front seat after the officermade eye contact with him. This action caused the arresting officer to become suspicious.As a result, the arresting officer parked his patrol vehicle, approached the defendant'svehicle, and asked the defendant what he was doing.
While requesting the defendant's driver license, the arresting officer saw a blackplastic bag containing small sealed clear plastic bags filled with a large white rocklikesubstance on the floor between the defendant's legs. After the defendant was placed inthe arresting officer's patrol vehicle, the arresting officer searched the defendant's vehicleand recovered the black plastic bag and a separate paper bag from under the driver's seatwhich contained what was later determined to be cocaine.
At the beginning of the arresting officer's testimony, the prosecutor asked the officera series of questions concerning his experience with the sale of narcotics. The prosecutorasked if the arresting officer was "generally familiar with street level narcoticstrafficking," to which he responded "yes." The prosecutor then asked if the arrestingofficer had ever "done surveillance on homes out of which narcotics are sold," "donesurveillance of suspects selling cocaine," "debriefed people who sell cocaine," "debriefedpeople who buy cocaine," and "assisted in the execution of search warrants on homes andcars [out] of which narcotics are sold." The arresting officer responded "yes" to all ofthese questions. The prosecutor also inquired about the arresting officer's familiarity with"the way that street level narcotics are packaged," "the prices and quantities that narcoticsare sold in, specifically cocaine," and "the price of a kilogram of cocaine." Defensecounsel objected to these questions on the basis of relevance but the objection wasoverruled. The prosecutor continued to ask about the street value of a gram ofcocaine.
Following a dozen questions about the arresting officer's experience with narcoticssales, the prosecutor finally questioned the arresting officer about his experience with thecrimes with which the defendant was charged. The prosecutor asked the arresting officerif he had ever made car stops, if he made car stops involving narcotics possession, andapproximately how many car stops involving narcotics possession had he made.
The prosecution also called as a witness the detective who had processed the blackplastic bag recovered from the defendant's vehicle. The detective stated that the DNA onthe bag could have belonged to anyone who the defendant had been "dealing with." Thedefense moved for a mistrial, arguing that the detective's answer suggested the defendantwas a cocaine dealer. The [*5]Supreme Court denied thedefendant's motion, which emboldened the prosecutor to pursue the cocaine sale theoryeven further.
On his case-in-chief, the defendant testified that he had stopped at the subjectshopping center to get something to eat. He recalled that, after he parked his car and ashe was walking to a nearby Applebee's, the arresting officer stopped and detained him.The defendant denied that the cocaine was his and testified that he loaned his car toemployees of his barber shop business on a regular basis.
In a series of questions during cross-examination, which started with the question"[w]ere you planning on meeting someone at the Applebee's to eat or did you just go byyourself?," the defendant claimed that, prior to being arrested, he was texting with histhen-girlfriend about meeting her for dinner. He stated that his then-girlfriend's name inhis phone contacts was "Bibian" but that she had a second phone with a different phonenumber.
When the prosecutor asked if "[a]nyone call[ed] you asking for cocaine?," thedefendant responded, "Never. I never sell . . . I don't sell cocaine."Apparently recognizing the impropriety of the question, the prosecutor then struck thequestion. However, the damage was already done.
During the People's rebuttal case, over the defendant's objection, the prosecutoroffered into evidence a chart showing 46 text messages received and sent from thedefendant's cell phone to and from a person identified as "Bb!!pul" starting the daybefore and continuing on the day of his arrest. The chart included the date and time,contact name and number of the recipient, and, significantly, the content of the textmessages translated from Spanish. There was no evidence provided as to who translatedthe text messages into English from Spanish. At the beginning of the trial, the SupremeCourt had granted the defendant's application to preclude the People from introducingthis document during its case-in-chief.
After the defendant testified, the Supreme Court admitted this nine-page chart intoevidence as "relevant strictly with respect to the defendant's credibility" to rebut thedefendant's testimony that he had been texting his then-girlfriend, one of whose cellphone numbers was saved under the name "Bibian" in his phone, prior to being arrested.The text messages between the defendant and Bp!!pul, who was apparently a male sincethe defendant referred to Bp!!pul as "my little brother" in one of the text messages,started on November 9, 2011, at 11:12 p.m., and continued through November 11, 2011,at 7:24 p.m. In 1 of the 10 text messages which were sent the night before the defendant'sarrest, the defendant responded to Bb!!pul, "I'll tell you personally," when asked "[w]hatdo you have there?" In the next text, Bb!!pul asked, "Old man do you have themoney?"
The text messages which were sent and received on the date of the defendant's arreststarted at 12:23 p.m., more than six hours before the defendant would be arrested. Thefollowing 32 messages occurred in the time frame before the defendant's arrest. Only twotext messages were sent and received around the time of the defendant's arrest. In a textmessage sent at 6:54 p.m., the defendant informed Bb!!pul that he would be there in fiveminutes, to which Bb!!pul responded, at 6:55 p.m., "Go into the restaurant there and giveme a little bit because I won't be arriving on time."
During summation, the prosecutor used the content of the admitted text messageschart. The prosecutor began with explaining that the name of the contact, Bp!!pul, wasinconsistent with the defendant's story that he was texting with his then-girlfriend. Theprosecutor did not stop there.
Despite the Supreme Court instructing the prosecution that the text messages wereonly to be used to discredit the defendant's credibility, the prosecutor argued, "the textmessages, I'm going to suggest to you, corroborate the defendant's possession ofcocaine." The prosecutor went on to recount that the defendant began texting Bp!!pul theday before he was arrested to set up a meeting in the parking lot. The prosecutor stressedthat the messages were "coded and secretive." The prosecutor continued by repeating thetext messages in which the defendant is referred to as "old [*6]man," is asked "what do you have there?," and responded,"I'll tell you personally." Immediately after referencing the text messages setting up themeeting, the prosecutor directed the jury's attention to the fact that the defendant wasfound in possession of "over half a kilo of cocaine," and implied that the defendant wassupplementing his income by selling cocaine. The subtext of the prosecutor's summationand the chart was to point the jury in the unmistakable direction that the case was aboutcocaine dealing and not cocaine possession.
On appeal, the defendant argues, inter alia, that the Supreme Court erred when itfailed to suppress the cocaine recovered at the scene of the arrest at a pre-trial hearing.The defendant also argues that the court erred in admitting the chart of text messages intoevidence on rebuttal because the messages pertained to a collateral matter and that thedetective's testimony and the prosecutor's summation drew the unmistakable conclusionthat the defendant was involved in uncharged cocaine sale crimes, which deprived him ofa fair trial.
There are two fundamental bases upon which to reverse the judgment of convictionon the charge of criminal possession of a controlled substance in the first degree. Thefirst ground for reversal is the admission into evidence of the chart of unredacted textmessages. Second, the cumulative effect of the extensive questioning of the arrestingofficer about narcotic sales in the area, the detective's testimony that one of the bagsfound in the defendant's possession may have contained prints of someone the defendantwas "dealing with," the admission of the chart of text messages spanning two days incoded language setting up a meeting with a male individual, and the prosecutor'ssummation continuing the cocaine dealing narrative using the content of the admittedtext messages, mandate reversal. When viewed cumulatively, these errors deprived thedefendant of a fair trial (see People v Calabria, 94 NY2d 519, 523 [2000]; People v Maier, 77 AD3d681, 682 [2010]; People v Vasquez, 120 AD2d 757, 758 [1986]; Peoplev Pippin, 67 AD2d 413, 415 [1979]).
The Supreme Court erred in allowing the prosecutor to introduce as rebuttal evidencethe content of the text messages. Such evidence violated the rule set forth inMolineux (see People v Molineux, 168 NY 264 [1901]; People v Thomas, 65 AD3d1170, 1172 [2009] [admission of the visitor log book from prison evidencing thedefendant's incarceration before and during the trial, to the extent relevant to a materialfact, was an improvident exercise of discretion by the trial court since "whateverprobative value it conferred was substantially outweighed by the danger that it wouldunfairly prejudice the defendant or mislead the jury"]; People v Pippin, 67 AD2dat 417 [the prejudice to the defendant resulting from improper cross-examination was"manifest" where the defendant was charged only with possession, not sale, of acontrolled substance]) and went beyond the reasonable scope of rebuttal evidence as itsought to impeach the defendant's credibility with regard to a collateral matter (seePeople v Harper, 220 AD2d 450, 450 [1995]). The introduction of the content of thetext messages was misleading and unduly prejudicial since it gave the jury the ability toaccept the prosecution's not so subtle invitation to view the defendant as a cocaine dealer(see People v King, 115AD3d 873, 875 [2014]; seegenerally People v Wilkinson, 71 AD3d 249, 256 [2010]).
"It is well established that the party who is cross-examining a witness cannotintroduce extrinsic documentary evidence or call other witnesses to contradict a witness'answers concerning collateral matters solely for the purpose of impeaching that witness'credibility" (People v Pavao, 59 NY2d 282, 288-289 [1983]; see People vGriffin, 194 AD2d 738, 738-739 [1993]; see also People v Ramos, 139AD2d 775, 776 [1988] ["We condemn this attempt to associate the defendant with drugdealing through the use of unsubstantiated innuendo within the context of a whollycollateral matter"]).
The defendant was only charged with possession of a controlled substance in the firstdegree, wherein the sole elements were whether he knew he was in possession of thecocaine and the weight of the cocaine (see Penal Law § 220.21).The content of the text messages, starting from the night before the arrest, which arepurportedly setting up a meeting for a deal, goes to neither knowledge of possession northe weight of the cocaine. Had the text messages presented to the jury been limited tothose exchanged around the time of the arrest, and then redacted to show only the contactname and telephone number of the person texted, their introduction for the limitedpurpose of rebutting the defendant's testimony that he was texting his then-girlfriendprior to being arrested would have been proper. Such evidence would have accomplishedthe People's stated goal of attacking the defendant's credibility on this issue and wouldhave stayed within the limits set by the [*7]SupremeCourt. However, the time span and content of the messages, specifically the languageregarding the meeting and money exchange from the night before the arrest, goes to thesuggested, unproven sale of cocaine.
The "general rule is that when a man [or woman] is put upon trial for one offense, he[or she] is to be convicted, if at all, by evidence which shows that he [or she] is guilty ofthat offense alone," and proof of other bad acts or crimes should be excluded to avoidjury misfocus (People v Wilkinson, 71 AD3d at 253 [internal quotation marksomitted]). Even if the evidence of the uncharged crime of criminal sale is offered for alegitimate purpose, absence of mistake or accident, "such evidence must be excluded ifits potential for prejudice outweighs its probative value" (People v Sayers, 64 AD3d728, 732 [2009]; see Peoplev Dorm, 12 NY3d 16, 19 [2009]; People v Molineux, 168 NY at 293;People v Maier, 77 AD3d at 683; People v Thomas, 65 AD3d at1172).
Contrary to the People's contention, the evidence of the text messages was neitheroffered nor admitted to corroborate the arresting officer's testimony or to "complete thenarrative" of criminal cocaine possession. Rather, the evidence was introduced oncross-examination of the defendant (People v Maier, 77 AD3d at 682). Under thecircumstances of this case, the text messages referencing the uncharged crime of criminalsale were not necessary to "sort out ambiguous but material facts" (People v Resek, 3 NY3d385, 390 [2004]; see People v Maier, 77 AD3d at 682-683; People vWilkinson, 71 AD3d at 249; People v Foster, 295 AD2d 110, 113 [2002]).The purpose of the meeting simply was not material to the prosecution of the cocainepossession charge.
In support of allowing the text messages into evidence, the majority relies onPeople v Harris (57 NY2d 335 [1982]). Harris is distinguishable from thefacts of this case. The phone conversation evidence admitted in Harris was notcollateral, as it was directly relevant to the issue of intent and could have been introducedin the prosecutor's direct case absent an authentication problem that was resolved whenthe defendant laid the proper foundation during her testimony (see id. at345-346). Unlike the trial court in Harris, which providently exercised itsdiscretion in allowing the phone conversation evidence on rebuttal, the trial court herecorrectly ruled that the text messages were not properly a part of the prosecutor's directcase prior to the trial (see id. at 345-346). In this case, defense counsel argued, inlimine, that the content of the text messages had no probative value on the possessioncharge, was inadmissable hearsay, and that the prejudicial effect of portraying thedefendant as a cocaine dealer was greater than any probative value, to which the trialcourt agreed. Therefore, it was error to then allow the text messages to be placed inevidence on rebuttal because the messages themselves served no purpose other than toreinforce the prosecutor's improper cocaine dealing theory of the case. There is a realdanger that by giving the full content of the text messages, the jury was diverted from thecase before them, which was more prejudicial than probative (see People vResek, 3 NY3d at 389; People v Rojas, 97 NY2d 32, 37 [2001]; People vMaier, 77 AD3d at 683; People v Pippin, 67 AD2d at 417).
The cumulative effect of questioning the arresting officer about cocaine dealing, thecocaine dealing references in the detective's testimony, and the chart of text messageswas further compounded when the prosecutor made improper remarks during summationwhich suggested that the defendant possessed the cocaine with an intent to sell it, eventhough this was not an element of the crime for which the defendant was on trial (see People v Rowley, 127AD3d 884, 886 [2015]; People v Pippin, 67 AD2d at 415). To rule otherwiseopens the door to prosecutors obtaining a conviction by using not only evidence germaneto proving the elements of the crime charged but to bolster such evidence with proof thatfalls well outside of the strictures of Molineux.
The allusions to criminal cocaine dealing were not limited to a solitary comment bythe prosecutor. Rather, it was "the overarching theme of the prosecutor's summation" (People v Gordon, 50 AD3d821, 822 [2008]). During summation, the prosecutor used the content of the textmessages to illustrate that the defendant began setting up a meeting with a maleindividual in a parking lot using coded and secretive language, so he could "tell [him]personally" what he had there. The prosecutor immediately followed that narrative withthe weight of the cocaine found in the defendant's possession. The prosecutor concludedby implying that the defendant must be supplementing his income with the sale ofcocaine.
[*8] The prosecutor stated that the"texts are consistent with the defendant's possession of cocaine." This was disingenuous,at best, and misleading. The content within the text messages had nothing to do with thedefendant's credibility relating to whom he was texting. Plainly, the text messages,testimony, and summation are equally if not more consistent with the defendant's sale ofcocaine than his criminal possession of it. As the prosecutor's remarks were notresponsive to the defense's summation, permissible rhetorical comment, nor were they afair comment on the evidence, this case warrants reversal because of the cumulativeprejudicial effect (see People v Ashwal, 39 NY2d 105, 109-110 [1976]; cf.People v Gordon, 50 AD3d at 822).
Although the majority correctly notes that defense counsel did not object duringsummation, summation arguments relating to the text messages are preserved forappellate review (see CPL 470.05; cf. People v King, 119 AD3d 819, 820 [2014]). Duringsummation, the prosecutor referenced the content of the text messages, the admission ofwhich defense counsel had specifically objected to twice during the trial. The trial courtinstructed the prosecution that the defendant's objections would be sustained if there was"any mention of any potential drug deal." Even though the prosecutor did not use theactual terms "drug deal" or "drug sale" in his summation, his use of the text messages andother evidence clearly left the jury with the unmistakable conclusion that cocaine saleswere the key to the case.
Defense counsel correctly argued that additional objections during summation andcurative instructions to the jury would have attracted even more attention to theprosecutor's portrayal of the defendant as a cocaine dealer. To the extent that claims as tothe prosecutor's summation are not preserved for appellate review, this Court can andshould reach them as a matter of discretion in the exercise of its interest of justicejurisdiction (see CPL 470.15 [6] [a]; People v Caparella, 83 AD3d 730, 731 [2011]; People v Ortiz, 69 AD3d490, 491 [2010]; People v Gordon, 50 AD3d at 822; People v Prince, 36 AD3d833, 834 [2007]).
I do, however, agree with the majority that the Supreme Court properly denied thebranch of the defendant's omnibus motion which was to suppress the physical evidence.When a police officer has probable cause to detain a motorist temporarily for a trafficviolation, a seizure of the vehicle is reasonable (see Whren v United States, 517US 806, 810 [1996]; People v Robinson, 97 NY2d 341, 349 [2001]; People v Bookman, 131 AD3d1258, 1260 [2015], lv granted 26 NY3d 1112 [2016]). Here, the officerdetained the defendant for a defective license plate light (see Vehicle and TrafficLaw § 375 [2] [a] [4]) and missing rear-view mirror (see Vehicleand Traffic Law § 375 [10] [a]), and because the cocaine was observed inplain view on the floor of the car between the defendant's legs, the cocaine was lawfullyseized (see People vEdwards, 82 AD3d 1005, 1006 [2011]).
Accordingly, I would vacate the conviction of criminal possession of a controlledsubstance in the first degree and the sentence imposed thereon, and remit the matter tothe Supreme Court, Suffolk County, for a new trial on that count of the indictment.