| People v Watson |
| 2017 NY Slip Op 03802 [150 AD3d 1384] |
| May 11, 2017 |
| Appellate Division, Third Department |
[*1](May 11, 2017)
| The People of the State of New York,Respondent, v Tyrone Watson, Appellant. |
Thomas J. Melanson, Kingston, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered September 4, 2013, upon a verdict convicting defendant of the crimes of criminal saleof a controlled substance in the third degree (five counts), criminal possession of a controlledsubstance in the third degree (six counts) and criminally using drug paraphernalia in the seconddegree.
In 2012, after having been introduced to defendant by a confidential informant (hereinafterCI), an undercover police officer purchased cocaine from defendant during five separatecontrolled buys. Defendant was later arrested and, upon the execution of a search warrant, drugparaphernalia was discovered in defendant's residence. Defendant was thereafter charged in a12-count indictment with criminal sale of a controlled substance in the third degree (five counts),criminal possession of a controlled substance in the third degree (six counts) and criminally usingdrug paraphernalia in the second degree. The matter proceeded to a jury trial and, at the close ofthe People's case-in-chief, defendant moved to dismiss the indictment on the ground that thePeople had failed to locate and produce the CI for trial. County Court denied the motion and thecase was submitted to the jury, which returned a verdict finding defendant guilty as charged.County Court denied defendant's subsequent CPL article 330 motion to set aside the verdict andsentenced defendant, as a second felony offender, to an aggregate prison term of 18 years,followed by three years of postrelease supervision. Defendant appeals, and weaffirm.
[*2] Defendant argues that he was entitled todismissal of the indictment because the People failed to locate and produce the CI for trial, whichhe asserts deprived him of a fair trial, due process and his right to confront a material witnesswho was once in the People's control. Under People v Jenkins (41 NY2d 307 [1977]),once a defendant has demonstrated that the testimony of an unavailable CI, who "is or has beenunder the employ or control of law enforcement authorities," would be material and relevant tohis or her guilt or innocence, "the People have a duty to produce the [CI] or exert diligent effortsto effect the production of the [CI] for the defense" (id. at 309, 312; see People vManeiro, 49 NY2d 769, 770 [1980]). "An absolute duty of production, or, alternatively,dismissal of the prosecution's case, is required only where the People have intentionally procuredthe disappearance of the [CI] when they knew or should have known that the testimony would bematerial and relevant to the defense, or have exerted inadequate efforts to locate the [CI], toavoid his or her presence at trial" (People v Jenkins, 41 NY2d at 312; accord People vMiller, 124 AD2d 830, 831 [1986], lv denied 69 NY2d 830 [1987]; see People vManeiro, 49 NY2d at 770). Where the People have not intentionally procured thedisappearance of the CI and have exerted diligent efforts to locate the CI, "a defendant mustsatisfy a higher standard of materiality and relevance"; the defendant must "demonstrate[ ]affirmatively that the testimony of the [CI] was . . . likely to have been favorable tosome degree in tending to exculpate [him or her] or, alternatively, he [or she] must show theexistence of a significant likelihood that the [CI's] testimony could be impeached to a meaningfuldegree creating a doubt as to the reliability of the [People's] case" (People v Jenkins, 41NY2d at 311-312; see People v Lesiuk, 81 NY2d 485, 490 [1993]; People v Rivera, 98 AD3d 529,530 [2012], lv denied 20 NY3d 935 [2012]).
Here, defendant established that the testimony of the CI was material and relevant to hisinnocence, as the CI introduced him to the undercover officer and was present for three of thefive controlled buys. However, as County Court properly concluded, there was no indication thatthe People procured the unavailability of the CI, and the record demonstrates that adequateefforts were made to locate her. At trial, the People stated that they did not intend to call the CI asa witness and, in fact, did not know where she was. Once it became apparent that defendantmight want to call the CI as a witness in furtherance of his agency defense, law enforcementofficials promptly made efforts to locate the CI (see People v Budd, 46 NY2d 930,931-932 [1979]). When reached by telephone, the CI stated to a law enforcement officer that shehad been threatened by defendant's friends, that she had, therefore, "fled the area" and that shewould not return or reveal her location for fear of reprisal. The record also includes someindication that County Court issued a judicial subpoena directing the CI's appearance in court.Furthermore, defendant was unable to meet his high burden of establishing that the proposedtestimony of the CI would be exculpatory or would create reasonable doubt as to the reliability ofthe People's case (see People v Fedrick, 172 AD2d 1043, 1044 [1991], lv denied78 NY2d 1127 [1991]; People v Watson, 120 AD2d 866, 867 [1986]; see generallyPeople v Jenkins, 41 NY2d at 310-311). Moreover, although he was not entitled to it, giventhe CI's unavailability (see People v Carpenito, 80 NY2d 65, 68 [1992]; People vCastro, 291 AD2d 292, 293 [2002], lv denied 98 NY2d 636 [2002]; People vMatthews, 185 AD2d 900, 901 [1992], lv denied 80 NY2d 975 [1992]), defendantreceived the benefit of a missing witness charge. Accordingly, under all of these circumstances,neither dismissal of the indictment nor a new trial was warranted (see People v Maneiro,49 NY2d at 771; People v Torres, 213 AD2d 687, 688 [1995], lv denied 86 NY2d803 [1995]; People v Martinez, 79 AD2d 661, 661-662 [1980], affd 54 NY2d 723[1981]).
Defendant also challenges County Court's Molineux ruling, which permitted thePeople to introduce evidence of defendant's 2003 conviction for criminal possession of acontrolled substance in the second degree once defendant asserted, during his opening argument,that he had secured the cocaine as an agent of the undercover police officer and the CI. It is wellsettled that [*3]a defendant who asserts an agency defense openshimself or herself up to the presentation of Molineux evidence to refute such defense (see People v Small, 12 NY3d 732,733 [2009]; People v Mitchell, 112AD3d 1071, 1073 [2013], lv denied 22 NY3d 1140 [2014]; People v Nealon, 36 AD3d 1076,1078 [2007], lv denied 8 NY3d 988 [2007]; People v Ortiz, 259 AD2d 979, 980[1999], lv denied 93 NY2d 1024 [1999]). Here, County Court aptly concluded thatdefendant's 2003 conviction was relevant and material to refuting defendant's claimed agencydefense, which implicated the issue of whether defendant possessed the drugs with the intent tosell them to the undercover police officer. Contrary to defendant's contention, County Courtengaged in a proper weighing of the probative value versus prejudicial effect of admittingevidence of this 2003 conviction, and we discern no abuse of discretion in its determination thatthe prejudicial effect of admitting such evidence was outweighed by its probative value (see People v Lee, 129 AD3d 1295,1298 [2015], lv denied 27 NY3d 1001 [2016]; People v Nealon, 36 AD3d at1078). Moreover, to minimize any prejudicial effect, County Court precluded the People fromeliciting testimony regarding certain inflammatory facts underlying the 2003 conviction and itprovided timely and appropriate limiting instructions to the jury upon the introduction of suchevidence and again in its final charge (see People v Small, 12 NY3d at 733; People vLee, 129 AD3d at 1298; People v Nealon, 36 AD3d at 1079). As such, there is nobasis upon which to disturb County Court's Molineux ruling.
Defendant further contends that County Court's Sandoval ruling constituted an abuseof discretion. "The determination as to which prior convictions and bad acts can be inquiredabout and the extent of such inquiry rests primarily within the discretion of the trial court" (People v Adams, 39 AD3d 1081,1082 [2007] [citation omitted], lv denied 9 NY3d 872 [2007]; see People vHayes, 97 NY2d 203, 207-208 [2002]; People v Sandoval, 34 NY2d 371, 375[1974]). Here, the People sought permission to cross-examine defendant about six of his priorconvictions should he take the witness stand. After reasoned consideration of the probative valueand prejudicial effect of each conviction, County Court precluded inquiry into defendant's 1990drug-related convictions, limited inquiry into three of the convictions to certain information, suchas the date, time, location and the specific crime or the general class of crime committed, andpermitted a somewhat fuller inquiry into defendant's 2006 conviction for criminal possession of aweapon in the third degree. While defendant contends that the unavailability of the CI shouldhave weighed in favor of precluding inquiry into these prior convictions, we note that "[t]he factthat . . . defendant may have been the only possible source of testimony for hisdefense" heightened the importance that the People be permitted to inquire into issues bearing onhis veracity (People v Jones, 138AD3d 758, 758 [2016], lv denied 27 NY3d 1152 [2016]; see People v Hayes,97 NY2d at 208; People vSturdevant, 74 AD3d 1491, 1494 [2010], lv denied 15 NY3d 810 [2010]).Overall, as County Court's Sandoval ruling reflects a measured balancing of the probativevalue and prejudicial effect of each prior conviction and greatly limited the potential forprejudice, County Court's ruling was not an abuse of discretion (see People v Hayes, 97NY2d at 208; People v Wolfe, 103AD3d 1031, 1036 [2013], lv denied 21 NY3d 1021 [2013]; People v Wilson, 78 AD3d 1213,1215-1216 [2010], lv denied 16 NY3d 747 [2011]).
As a final matter, we find no merit to defendant's contentions that County Court consideredimproper factors during sentencing or that his sentence, which fell within the permissiblestatutory parameters, was harsh and excessive (see People v Lee, 129 AD3d at 1300; People v Richards, 124 AD3d1146, 1147-1148 [2015], lv denied 25 NY3d 992 [2015]). Defendant failed topreserve his further contention that the sentence imposed constituted a penalty for rejecting a pleaoffer of 12 years in prison and exercising his constitutional right to a jury trial (see People vHurley, 75 NY2d 887, 888 [1990]; People v Haskins, 121 AD3d 1181, 1185 [2014], lv denied24 NY3d 1120 [2015]), and, in any event, the record contains no support for such claim (see People v Collier, 146 AD3d1146, 1152 [2017]).
[*4] To the extent that wehave not addressed any of defendant's remaining contentions, they have been examined anddetermined to be without merit.
Garry, J.P., Lynch, Rose and Aarons, JJ., concur. Ordered that the judgment is affirmed.