| People v Morman |
| 2016 NY Slip Op 08620 [145 AD3d 1435] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jesse Morman, Appellant. (Appeal No.1.) |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered June 27, 2013. The judgment convicted defendant, upon a jury verdict, ofcriminal sale of a controlled substance in the third degree (two counts) and criminalpossession of a controlled substance in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice by directing that the sentences shall runconcurrently and as modified the judgment is affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himfollowing a jury trial of two counts each of criminal sale of a controlled substance(CSCS) in the third degree (Penal Law § 220.39 [1]) and criminalpossession of a controlled substance (CPCS) in the third degree (§ 220.16[1]) arising from defendant's sale of crack cocaine to an undercover police officer on twodates in January 2012. In appeal No. 2, defendant appeals from a judgment convictinghim following the same jury trial of, inter alia, two counts each of CPCS in the thirddegree (§ 220.16 [1]) and criminally using drug paraphernalia in the seconddegree (§ 220.50 [2], [3]) arising from the discovery of cocaine, packagingmaterials, and a digital scale in defendant's vehicle following a traffic stop in April2012.
Defendant contends in appeal No. 1 that County Court erred in refusing to suppressthe undercover officer's identification testimony on the ground that the procedure wasunduly suggestive because the single photograph that the undercover officer viewedbefore the controlled purchases tainted his post-purchase identifications of defendant asthe seller. Defendant's contention is not preserved for our review inasmuch as he failed toraise that specific contention either as part of his omnibus motion seeking suppression ofthe identification testimony or at the Wade hearing (see People v Beaty, 89 AD3d1414, 1416 [2011], affd 22 NY3d 918 [2013]), nor did the court expresslydecide the question raised on appeal (see CPL 470.05 [2]; People v Graham, 25 NY3d994, 997 [2015]). We decline to exercise our power to review that contention as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
We reject defendant's contention in appeal No. 2 that the court erred in refusing tosuppress the physical evidence recovered during an inventory search of his vehiclefollowing the traffic stop initiated by a state trooper. "Following a lawful arrest of thedriver of an automobile that must then be impounded, the police may conduct aninventory search of the vehicle" pursuant to established police regulations (People v Johnson, 1 NY3d252, 255 [2003]). Contrary to defendant's contention, we conclude that the initialdetermination of the police to impound the vehicle was proper inasmuch as defendant,who was the sole occupant of the vehicle, was placed under arrest after the Trooperdiscovered that he had an outstanding warrant, and thus was unable to drive the vehicle(see People v Wilburn, 50AD3d 1617, 1618 [2008], lv denied 11 NY3d 742 [2008]; People v Figueroa, 6 AD3d720, 722 [2004], lv dismissed 3 NY3d 640 [2004]). Contrary to defendant'sfurther contention, "the police were not required to explore alternatives to impoundment"(Wilburn, 50 AD3d at 1618; see People v Walker, 20 NY3d 122, 125 [2012]; People v Schwing, 13 AD3d725, 725-726 [2004]). The record does not support defendant's contention that theinventory search was a mere pretext to uncover incriminating evidence; rather, thetestimony established that the Trooper's "intention for the search was to inventory theitems in the vehicle" (People vPadilla, 21 NY3d 268, 273 [2013], cert denied 571 US &mdash, 134 SCt 325 [2013]). We further conclude that, consistent with the state police regulationsadmitted in evidence at the hearing that defined the permissible scope of an inventorysearch, the Trooper acted reasonably in searching the open garbage bags he observed inthe rear seat of the vehicle (see id. at 273; see generally Walker, 20 NY3dat 126; People v Galak, 80 NY2d 715, 719 [1993]). Moreover, contrary todefendant's contention, the Trooper properly prepared a meaningful inventory list (cf.Johnson, 1 NY3d at 256; Galak, 80 NY2d at 720; see generallyWalker, 20 NY3d at 126), and "[t]he inventory search was not rendered invalidbecause the [Trooper] failed to secure and catalogue every item found in the vehicle" (People v Owens, 39 AD3d1260, 1261 [2007], lv denied 9 NY3d 849 [2007]).
We reject defendant's contention in both appeals that the court abused its discretionin granting the People's motion to consolidate the indictments for trial and denyingdefendant's subsequent request for reconsideration (see CPL 200.20 [4]; seegenerally People v Lane, 56 NY2d 1, 8 [1982]). The offenses arising from the twosales of crack cocaine in January 2012 were joinable with the offenses arising from thetraffic stop in April 2012 pursuant to CPL 200.20 (2) (b) because, under the applicableMolineux analysis (see People v Coble, 168 AD2d 981, 982 [1990], lvdenied 78 NY2d 954 [1991]), the "[t]estimony concerning defendant's prior drugsales was admissible with respect to the issue of defendant's intent to sell" the cocainediscovered as a result of the traffic stop (People v Whitfield, 115 AD3d 1181, 1182 [2014], lvdenied 23 NY3d 1044 [2014]; see People v Alvino, 71 NY2d 233, 245[1987]; People v Laws, 27AD3d 1116, 1116-1117 [2006], lv denied 7 NY3d 758 [2006]). In addition,the offenses in the indictments were joinable under CPL 200.20 (2) (c) on the groundthat they are "the same or similar in law" (see People v Torres, 212 AD2d 968,969 [1995], lv denied 86 NY2d 742 [1995]). Contrary to defendant's contentionthat he demonstrated prejudice sufficient to defeat the motion for consolidation, weconclude that he failed to make the requisite convincing showing that he had importanttestimony to give with respect to the drug sale charges and a strong need to refrain fromtestifying with respect to the offenses arising from the traffic stop (see Lane, 56NY2d at 9-10; People vMiller, 43 AD3d 1381, 1382 [2007], lv denied 9 NY3d 1036 [2008]).Defendant's remaining contentions regarding consolidation of the indictments areunpreserved for our review (see CPL 470.05 [2]), and we decline to exercise ourpower to review them as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]).
We reject defendant's further contention in both appeals that he was denied his rightto an impartial jury on the ground that a panel of prospective jurors was tainted by thecomments of two prospective jurors indicating that defendant was already guilty (seePeople v Miller, 239 AD2d 787, 790 [1997], affd 91 NY2d 372 [1998];People v Clark, 262 AD2d 233, 233-234 [1999], lv denied 93 NY2d 1016[1999]). The record establishes that the comments were overheard and reported by onlyone other prospective juror, the two prospective jurors were promptly excused by thecourt, and defense counsel thoroughly explored during further voir dire any potentialinfluence or bias arising from the comments. We thus conclude that defendant'scontention that the remaining jury panel was tainted by the comments is " 'purelyspeculative' " (People vFoose, 132 AD3d 1236, 1238 [2015], lv denied 26 NY3d 1145 [2016],denied reconsideration 27 NY3d 1132 [2016]).
Defendant contends in appeal No. 1 that the court abused its discretion in denying hismotion for a mistrial after the People introduced identification testimony of an officerwho had been conducting surveillance during one of the sales that had not been includedin the pretrial CPL 710.30 notice. We reject that contention. Here, upon defensecounsel's objection, the court struck the officer's testimony and instructed the jury todisregard it. We conclude that the court's curative instructions were sufficient to alleviateany prejudice to defendant resulting from that testimony, and thus the court properlyexercised its discretion in denying his motion (see People v Robinson, 309 AD2d1228, 1229 [2003], lv denied 1 NY3d 579 [2003]).
Defendant failed to preserve for our review his contention in appeal No. 2 that thePeople elicited inadmissible hearsay testimony from a narcotics investigator (seeCPL 470.05 [2]), and we decline to exercise our power to review that contention as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Contrary todefendant's contention, any error by defense counsel in failing to object to the admissionof the purported hearsay testimony was not so egregious as to deprive defendant of a fairtrial (see People v Galens,111 AD3d 1322, 1323 [2013], lv denied 22 NY3d 1088 [2014]; see generally People v Caban,5 NY3d 143, 152 [2005]). We agree with defendant that the court erred in admittingthe opinion testimony of the narcotics investigator that defendant was selling cocaineinasmuch as that testimony tended to usurp the jury's fact-finding function on theultimate issue of possession with intent to sell (see People v Hartzog, 15 AD3d 866, 866-867 [2005], lvdenied 4 NY3d 831 [2005]). We conclude, however, that the error is harmless(see id. at 867).
To the extent that defendant preserved for our review his additional contention inboth appeals that he was denied a fair trial by prosecutorial misconduct (see CPL470.05 [2]), we conclude that it lacks merit. Here, "[t]he alleged misconduct was 'not soegregious as to deprive defendant of a fair trial' " (People v Astacio, 105 AD3d1394, 1396 [2013], lv denied 22 NY3d 1154 [2014]).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention in appeal No. 1 that theverdict is against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]). According great deference to the jury's opportunity to "view thewitnesses, hear the testimony and observe demeanor" (id.), we conclude that thejury was entitled to credit the testimony of the undercover officer who identifieddefendant as the seller in both controlled purchases (see People v Grubbs, 48 AD3d 1186, 1187 [2008], lvdenied 10 NY3d 811 [2008]).
Defendant did not preserve for our review his contention in both appeals that thePeople failed to comply with the procedural requirements of CPL 400.21 when he wassentenced as a second felony offender (see People v Judd, 111 AD3d 1421, 1423 [2013], lvdenied 23 NY3d 1039; see generally People v Pellegrino, 60 NY2d 636, 637[1983]). In any event, we conclude that the record demonstrates that any error isharmless, and remitting the matter for the filing of an accurate predicate felony statementand the court's finding "would be futile and pointless" (People v Bouyea, 64NY2d 1140, 1142 [1985]; seePeople v Fuentes, 140 AD3d 1656, 1657 [2016]).
Contrary to defendant's further contention, we conclude that the sentence imposeddoes not constitute cruel and unusual punishment (see People v Jeffrey, 239AD2d 953, 953 [1997], lv denied 90 NY2d 894 [1997]; see generally Peoplev Jones, 39 NY2d 694, 697 [1976]; People v Broadie, 37 NY2d 100,110-119 [1975], cert denied 423 US 950 [1975]). Under the circumstances of thiscase, however, we agree with defendant that the consecutive and concurrent sentencesaggregating to a term of imprisonment of 30 years is unduly harsh and severe. Therefore,as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]), wemodify the judgment in appeal No. 1 by directing that the determinate sentences of 10years of imprisonment for each count of CSCS in the third degree and CPCS in the thirddegree run concurrently, and we modify the judgment in appeal No. 2 by reducing thesentence on each count of CPCS in the third degree to a determinate term of five years ofimprisonment, to run concurrently with each other and consecutively to the countsunderlying the judgment of conviction in appeal No. 1. Present—Peradotto, J.P.,Lindley, NeMoyer and Scudder, JJ.