| People v Wynn |
| 2017 NY Slip Op 02842 [149 AD3d 1252] |
| April 13, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Kris M.Wynn, Also Known as Kaye, Also Known as Beloved, Appellant. |
Mark Diamond, Albany, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Clinton County (McGill, J.),rendered April 17, 2014, upon a verdict convicting defendant of the crimes of criminal sale of acontrolled substance in the third degree (two counts) and criminal possession of a controlledsubstance in the third degree (three counts).
Following two controlled buys of drugs (cocaine and heroin) from defendant by two differentconfidential informants (hereinafter CI), defendant was apprehended after a traffic stop by a statetrooper on Interstate 87 (hereinafter I-87) in the Town of Plattsburgh, Clinton County. After acanine sniff indicated drugs in the vehicle, a search warrant for defendant's person was obtained.When the warrant was executed at the Plattsburgh police station, defendant produced 109 packetsof heroin from his pants. Defendant was thereafter indicted on three counts of criminalpossession of a controlled substance in the third degree and two counts of criminal sale of acontrolled substance in the third degree. Defendant's motion to suppress the physical evidenceobtained as a result of the search was denied by County Court. Following a jury trial, defendantwas convicted as charged and sentenced to an aggregate prison term of 16 years, together withfour years of postrelease supervision. Defendant appeals.
Defendant contends that County Court erred in finding that the police had probable cause toarrest him following the traffic stop on I-87. Testimony at the Mapp hearing establishedthat the police obtained a warrant to attach a GPS device to defendant's vehicle following the twocontrolled buys. A CI then reported that defendant would be returning to Clinton County fromSchenectady County with drugs. Police monitored the GPS transmission and waited at variouspoints on I-87. Defendant's vehicle, operated by a friend, was observed traveling in excess of thespeed limit and changing lanes without signaling and was then stopped by the police. Defendantoccupied the front passenger seat, and a canine sniff indicated the presence of drugs in that area.Defendant was taken into custody and transported to the Plattsburgh police station while thepolice obtained a search warrant. Shortly after the search warrant was delivered to the policestation, defendant produced, from his pants, a bag containing the packets of heroin. Defendanttestified at the Mapp hearing that the vehicle was not speeding and that the driver hadproperly signaled before returning to the right-hand lane. County Court found the policetestimony to be credible and held that the totality of the information known to the police at thetime of the traffic stop provided reasonable suspicion that defendant was carrying drugs. Weagree.
First, we note that "[f]actual determinations of the suppression court are entitled to greatweight and will not be overturned unless clearly contrary to the evidence, taking intoconsideration the court's credibility determinations" (People v Weishaupt, 118 AD3d 1100, 1102 [2014] [internalquotation marks and citations omitted]). Here, the state trooper had probable cause to believe thatthe driver had committed two traffic violations and he was therefore authorized to stop thevehicle on that basis, regardless of any other underlying motivation (see People vRobinson, 97 NY2d 341, 349 [2001]). Notwithstanding the traffic violations, the wealth ofinformation arising from the controlled buys, the court-authorized GPS monitoring of defendant'svehicle and the validated tip from one of the CIs regarding defendant's purposeful travels thatday, all established probable cause to detain defendant (see People v Wolfe, 103 AD3d 1031, 1034 [2013], lvdenied 21 NY3d 1021 [2013]). Further, the canine alert compounded the suspicion ofnarcotics possession and provided additional justification for defendant's detention (see People v Devone, 57 AD3d1240, 1243 [2008], affd 15 NY3d 106 [2010]).
Next, we note that defendant's challenge to the legal sufficiency of the evidence was notpreserved for our review as he made only a general motion to dismiss the entire indictment at theclose of the People's case (see People vThorpe, 141 AD3d 927, 928 [2016], lv denied 28 NY3d 1031 [2016]; People v Thiel, 134 AD3d 1237,1237-1238 [2015], lv denied 27 NY3d 1156 [2016]). With regard to defendant's furthercontention that the verdict was against the weight of the evidence, we are first required "todetermine whether an acquittal would not have been unreasonable [and] [i]f so, [we] must weighconflicting testimony, review any rational inferences that may be drawn from the evidence andevaluate the strength of such conclusions" (People v Danielson, 9 NY3d 342, 348 [2007]; see People vBleakley, 69 NY2d 490, 495 [1987]). Here, an acquittal would not have been unreasonable ifthe jury had determined not to credit the testimony of the CIs. However, with regard to the twocontrolled buys, we reject defendant's contention that either or both of the CIs were insufficientlyreliable. Although both CIs had criminal backgrounds, histories of drug abuse and receivedfavorable treatment from the People for their cooperation, the record shows that both were fullycross-examined at trial. Defendant has failed to demonstrate that their testimony was "inherentlyincredible or improbable" (People vHeaney, 75 AD3d 836, 837 [2010], lv denied 15 NY3d 852 [2010]). Abundantevidence established that the two drug transactions were closely monitored by police and that thesubstances purchased were narcotics. Defendant's argument at trial with regard to the credibilityof the police officers who witnessed his production of the heroin from his pants at the policestation was rejected by the jury, and he has furnished no reason for this Court to disturb thatfinding. Consequently, we find that the jury's verdict on all of the charges is in accord with theweight of the evidence.
As for defendant's challenges to County Court's evidentiary rulings during the trial, wediscern no abuse of discretion (see People v Carroll, 95 NY2d 375, 385 [2000];People v Aska, 91 NY2d 979, 981 [1998]). Detective Chris Maggy's testimony that StateTrooper Matthew Ross told him that the canine "alerted positively" during the traffic stop wasproperly admitted for the nonhearsay purpose of providing background information for Maggy'sactions (see People v Jackson, 100AD3d 1258, 1261 [2012], lv denied 21 NY3d 1005 [2013]). Further, a labtechnician's statement that another scientist had not found any discrepancies when her test resultswere reviewed was not hearsay because that fact was included in admissible business records(see CPLR 4518 [a]). Finally, defendant's objection with respect to the chain of custodyproof offered by the People merely goes to its weight, not admissibility (see People v Shoga, 89 AD3d1225, 1226 [2011], lv denied 18 NY3d 886 [2012]).
We also reject defendant's contention that the prosecutor's comments during summationdeprived him of a fair trial. Reversal based on prosecutorial misconduct during summation "iswarranted only if the misconduct is such that the defendant suffered substantial prejudice,resulting in a denial of due process" (People v Forbes, 111 AD3d 1154, 1160 [2013] [internal quotationmarks, brackets and citations omitted]). That determination "hinges upon 'the severity andfrequency of the conduct, whether the trial court took appropriate action to dilute the effect of theconduct and whether, from a review of the evidence, it can be said that the result would havebeen the same absent such conduct' " (id., quoting People v Tarantola,178 AD2d 768, 770 [1991], lv denied 79 NY2d 954 [1992]). First, we note that defensecounsel made only one objection during the prosecutor's summation and, thus, did not preservehis arguments regarding several other comments for our review (see People v Rivera, 124 AD3d1070, 1074-1075 [2015], lv denied 26 NY3d 971 [2015]; People v Leonard, 83 AD3d 1113,1117 [2011], affd 19 NY3d 323 [2012]). Defense counsel did object to the prosecutor'scharacterization of his challenge to the arresting officer's credibility as an accusation that theofficer planted the heroin on defendant. We agree that the prosecutor's statements constituted faircomment on defense counsel's challenge to the arresting officer's integrity and credibility (see People v Hawkins, 110 AD3d1242, 1244 [2013], lv denied 22 NY3d 1041 [2013]). Turning to the other statementscited by defendant, if his challenges were properly before us, we would find that the statementswere either fair comment on the evidence or a fair response to defendant's theory of the case asrevealed in the cross-examination of the People's witnesses and in his summation. While onecomment could reasonably be viewed as an unfair comment on defendant's right to trial, thatcomment, together with the other alleged improper statements, did not constitute "a flagrant andpervasive pattern of prosecutorial misconduct so as to deprive defendant of a fair trial"(People v Rivera, 124 AD3d at 1075 [brackets and citation omitted]).
Nor do we find merit in defendant's argument that he was deprived of the effective assistanceof counsel on the basis of counsel's failure to object to these other statements. In addressing theissue of effective representation, "[s]o long as the evidence, the law, and the circumstances of aparticular case, viewed in totality . . . , reveal that the attorney provided meaningfulrepresentation" (People v Baldi, 54 NY2d 137, 147 [1981]), the constitutionalrequirement will be satisfied (see People v Benevento, 91 NY2d 708, 712 [1998]). Ourreview of the record as a whole confirms that defense counsel presented cogent opening andclosing statements, made timely and appropriate motions and effectively cross-examined thePeople's witnesses, thus providing meaningful representation to defendant (see People v Thorpe, 141 AD3d927, 935 [2016], lv denied 28 NY3d 1031 [2016]).
Finally, we find no merit in defendant's challenges to his sentence. Defendant was [*2]provided with written notice of his predicate felony conviction, andhe made no objection thereto at sentencing. Consequently, his challenge to second felonyoffender status is unpreserved for our review (see People v Morse, 111 AD3d 1161, 1161 [2013], lvdenied 23 NY3d 1040 [2014]). Further we find no extraordinary circumstances or an abuseof discretion warranting modification in the interest of justice (see People v Rouse, 4 AD3d 553,558 [2004], lv denied 2 NY3d 805 [2004]; People v Delgado, 80 NY2d 780, 783[1992]).
Defendant's remaining arguments have been examined and found to be unavailing.
Egan Jr., J.P., Lynch, Rose and Clark, JJ., concur. Ordered that the judgment isaffirmed.