| People v Montford |
| 2016 NY Slip Op 08901 [145 AD3d 1344] |
| December 29, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vThomas Montford, Appellant. |
Paul J. Connolly, Delmar, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel),for respondent.
Garry, J. Appeal from a judgment of the County Court of Schenectady County(Murphy III, J.), rendered March 26, 2015, upon a verdict convicting defendant of thecrimes of criminal sale of a controlled substance in the third degree and criminalpossession of a controlled substance in the third degree (two counts).
In March 2014, a confidential informant (hereinafter CI) made a controlled purchaseof crack cocaine from defendant in the City of Schenectady, Schenectady County. Lawenforcement officers stopped defendant after the transaction and found that he wascarrying a pouch containing a substance later shown to be heroin and another substancealleged to be marihuana. Defendant was charged with criminal sale of a controlledsubstance in the third degree, two counts of criminal possession of a controlled substancein the third degree pertaining respectively to the cocaine and the heroin, and unlawfulpossession of marihuana. During the subsequent jury trial, defendant's motion to dismissthe marihuana charge was granted. He was convicted of the remaining charges andsentenced to concurrent prison terms of nine years on the criminal sale of a controlledsubstance conviction and the criminal possession conviction pertaining to cocaine, and toa consecutive nine-year prison term on the criminal possession conviction pertaining toheroin, followed by two years of postrelease supervision on each conviction. Defendantappeals.
Defendant contends that his conviction for criminal possession of a controlledsubstance in the third degree premised upon the heroin found on his person was againstthe weight of the [*2]evidence and was not supported bylegally sufficient evidence, in that the People failed to prove that he had the requisiteintent to sell. The legal sufficiency claim is unpreserved, as defendant failed to raise thisargument in his trial motion for dismissal (see People v Thiel, 134 AD3d 1237, 1237-1238 [2015],lv denied 27 NY3d 1156 [2016]; People v Junior, 119 AD3d 1228, 1229 [2014], lvdenied 24 NY3d 1044 [2014]). However, as part of this Court's weight of theevidence review, we necessarily determine whether all of the elements of the chargedcrimes were proven beyond a reasonable doubt (see People v Valverde, 122 AD3d 1074, 1075 [2014],lv denied 27 NY3d 970 [2016]).
Taken together, the trial testimony of the CI and several law enforcement officersestablished that the CI telephoned a man she knew as "Black"—later identified asdefendant—and made arrangements to meet him to purchase drugs. The CI wassearched before the transaction and given audio transmission equipment and buy moneyconsisting of two $20 bills that the police had photocopied. The CI then met defendanton the street and gave him the buy money in exchange for a quantity of crack cocainethat she described as "two little twenty pieces." Officers monitored the encounter usingsurveillance cameras, direct observation and the CI's transmission equipment, andfollowed defendant afterward as he rode away on his bicycle. The CI gave the cocaine toinvestigators and told them that defendant had taken it out of a black case or pouch inwhich the CI had seen other drugs that she believed to be heroin. Defendant was stoppedand searched, and a small black pouch was found on his person. Inside the pouch were17 glassine envelopes containing a substance later identified as heroin, as well asmultiple packages of a substance alleged to be marihuana. The packets of heroin werepackaged into two bundles with black rubber bands in a manner that, according to thetestimony of several detectives, was consistent with the typical packaging of heroin forthe purpose of sale on the streets in Schenectady. Also found on defendant's person werea cell phone registered to the number that the CI had called, $209 in cash that includedthe two $20 bills that the police had photocopied, and a piece of paper containing thename Black and the cell phone's telephone number.
Against his counsel's advice, defendant took the stand and testified that he received aphone call from a woman who asked him to meet her, rode his bicycle to the meetinglocation and engaged in "personal business" with the woman, after which he was stoppedand arrested. He also testified that people on the streets knew him as Black. He nowargues that his intent to sell the heroin was not proven, as no sale of heroin took placeand the quantities of heroin and cash found on his person were too small to support aninference that he intended to sell the heroin rather than use it. However, it is possible topossess and intend to sell narcotics without actually completing a sale (see People vMendoza, 300 AD2d 824, 824-825 [2002], lv denied 99 NY2d 617 [2003]).Here, the jury could infer defendant's intent to sell the heroin from the police testimonythat it was packaged in a manner consistent with sale and from the other surroundingcircumstances, including defendant's "saleslike conduct" in selling the cocaine(People v Sanchez, 86 NY2d 27, 35 [1995]). Such conduct also included the factthat the heroin was in the same pouch that contained the cocaine that defendant sold tothe CI, the CI's testimony that defendant had previously sold drugs to her on otheroccasions, and defendant's possession of the piece of paper containing his street nameand telephone number, which police testified was consistent with a "business card"advertising his availability as a drug dealer (compare People v McCoy, 59 AD3d 856, 857 [2009]).There was no evidence that defendant personally used heroin or any other drug, and therelatively small quantities of drugs and cash found in his possession were consistent withthe fact that he was riding his bicycle when he met the CI to carry out the cocainetransaction. Viewing the evidence in a neutral light (see People v Cruz, 131 AD3d 724, 725 [2015], lvdenied 26 NY3d 1087 [2015]), we cannot say that the conviction is against theweight of the evidence (see People v Banks, 264 AD2d 667, 667 [1999], lvdenied 94 [*3]NY2d 819 [1999]).
We agree with defendant, however, that his convictions must be reversed because ofthe erroneous denial of his challenge for cause to a juror. During voir dire, one of thejurors told County Court that he knew several members of the District Attorney's staff,including an investigator with whom the juror and his wife had been friends for over 30years, two other individuals who had previously been named by the court as employeesof the District Attorney's office, and an Assistant District Attorney in SchenectadyCounty. The juror explained that he had strong connections in law enforcement; he hadworked for a town police department in Schenectady County for almost 20 years, was apart-time patrol officer at the time of trial, had also worked as a road deputy inSchenectady County and was "the career fire chief" for a village in Schenectady County.Despite his affiliations with law enforcement, he repeatedly confirmed that he would befair, would follow his oath, would not communicate with police officers or AssistantDistrict Attorneys and had no concerns about "split obligations" arising from hisexperience in law enforcement or being able to judge the police work or the People's casefairly.
Defense counsel challenged the juror for cause, noting that the juror was an activemember of law enforcement and that the investigator that the juror had identified as afriend was working on defendant's case and had already been present in the courtroomduring the trial. The prosecutor confirmed that the investigator was working on the caseand that he might appear in the courtroom. County Court denied the challenge on theground that the juror had stated unequivocally that he would be fair and impartial.
There are circumstances in which a prospective juror's assurances of impartiality areinadequate. A challenge for cause must be granted when the juror has a relationship with,as pertinent here, counsel for the People that is so close "that it is likely to preclude him[or her] from rendering an impartial verdict" (CPL 270.20 [1] [c]). This is so because"the risk of prejudice arising out of the close relationship . . . [is] so greatthat recital of an oath of impartiality could not convincingly dispel the taint" (Peoplev Branch, 46 NY2d 645, 651 [1979]; accord People v Hamilton, 127 AD3d 1243, 1246 [2015],lv denied 25 NY3d 1160 [2015]; see People v Wlasiuk, 90 AD3d 1405, 1412 [2011]).Factors to be taken into account in determining whether a relationship is sufficientlyclose to require disqualification include "the frequency, recency or currency of thecontact, whether it was direct contact, and the nature of the relationship as personaland/or professional" (People vGreenfield, 112 AD3d 1226, 1228-1229 [2013], lv denied 23 NY3d1037 [2014]).
The juror's mere status as a law enforcement officer, without more, would notnecessarily have required his disqualification, nor would any relationship with a memberof the District Attorney's staff that was "little more than a nodding acquaintance"(People v Provenzano, 50 NY2d 420, 425 [1980]; see People v Pickren,284 AD2d 727, 727-728 [2001], lv denied 96 NY2d 923 [2001]; People vButts, 140 AD2d 739, 741 [1988]). However, the juror described the investigator asa "friend," and said that their social relationship had endured for more than 30 years andwas sufficiently close to include the juror's wife. While the juror did not specificallydescribe the recency or frequency of his contacts with this investigator, nothing in hisdescription of their relationship suggested any recent lessening in the strength of thislongstanding connection. Further, the investigator in question was working ondefendant's case, had already appeared in the courtroom by the time the juror wasquestioned and, according to the prosecutor, might continue to be present during thetrial.
"Nothing is more basic to the criminal process than the right of an accused to a trialby an impartial jury" (People v Branch, 46 NY2d at 652). This juror'slong-established relationship [*4]could have "create[d]the perception that the accused might not receive a fair trial before an impartial finder offact" (People v Furey, 18NY3d 284, 287 [2011]; accord People v Hamilton, 127 AD3d at 1247). Asdefendant exhausted his peremptory challenges before jury selection was complete, theerroneous denial of his challenge for cause requires reversal and a new trial (see People v Bedard, 132AD3d 1070, 1071 [2015]; People v Smith, 52 AD3d 847, 847-848 [2008]; Peoplev Clark, 125 AD2d 868, 869-870 [1986], lv denied 69 NY2d 878 [1987];see also People v Greenfield, 112 AD3d at 1229-1230). This determinationrenders the remaining challenge to defendant's sentence academic.
Peters, P.J., Devine, Mulvey and Aarons, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Schenectady County fora new trial.