| People v Gethers |
| 2017 NY Slip Op 05128 [151 AD3d 1398] |
| June 22, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v TerrenceGethers, Appellant. |
Stephen W. Herrick, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered May 19, 2015, upon a verdict convicting defendant of the crime of criminal sale of acontrolled substance in the second degree (three counts).
In March 2014, defendant was indicted on three counts of criminal sale of a controlledsubstance in the second degree, stemming from three occasions when he offered to sell more thanone half of an ounce of crack cocaine to a confidential informant (hereinafter CI) during separatecontrolled buy operations. Following a jury trial, defendant was convicted as charged, andCounty Court sentenced him, as a second felony drug offender, to three concurrent prison termsof 10 years, followed by five years of postrelease supervision. Defendant appeals, and weaffirm.
Defendant argues that the verdict is unsupported by legally sufficient evidence and is againstthe weight of the evidence. A challenge to the legal sufficiency of the evidence supporting aguilty verdict requires this Court to view the evidence in the light most favorable to the Peopleand to evaluate "whether there is any valid line of reasoning and permissible inferences whichcould lead a rational person to the conclusion reached by the jury on the basis of the evidence attrial and as a matter of law satisfy the proof and burden requirements for every element of thecrime charged" (People v Bleakley, 69 NY2d 490, 495 [1987] [citation omitted]; seePeople v Lynch, 95 NY2d 243, 247 [2000]). By contrast, a weight of the evidence reviewrequires this Court to make a threshold determination as to whether a different conclusion [*2]would have been unreasonable given all of the credible evidence(see People v Danielson, 9 NY3d342, 348 [2007]; People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542US 946 [2004]). Where a different conclusion would not have been unreasonable, the Court" 'must, like the trier of fact below, weigh the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony' " (People vPerser, 67 AD3d 1048, 1049 [2009], lv denied 13 NY3d 941 [2010], quoting People v Romero, 7 NY3d 633,643 [2006]; see People v Cahill, 2NY3d 14, 58 [2003]).
As relevant here, "[a] person is guilty of criminal sale of a controlled substance in the seconddegree when he [or she] knowingly and unlawfully sells . . . one or morepreparations, compounds, mixtures or substances containing a narcotic drug . . . ofan aggregate weight of one-half ounce or more" (Penal Law § 220.41 [1]). UnderPenal Law § 220.00 (1), a criminal sale includes an offer to sell or exchange drugs;thus, there is no requirement that an offer to sell or exchange drugs be consummated to sustain aconviction for criminal sale of a controlled substance (see People v Samuels, 99 NY2d20, 24 [2002]; People v Mike, 92 NY2d 996, 998 [1998]). "However, in order to supporta conviction under an offering for sale theory, there must be evidence of a bona fide offer tosell—i.e., that [the] defendant had both the intent and the ability to proceed with the sale"(People v Mike, 92 NY2d at 998 [citations omitted]; accord People v Magee, 135 AD3d 1176, 1177 [2016]; People v Crampton, 45 AD3d1180, 1181 [2007], lv denied 10 NY3d 861 [2008]). "Because intent is an invisibleoperation of the mind" and direct evidence of intent is often unavailable, it may be inferred fromthe circumstances, including a defendant's statements and conduct (People v Rodriguez, 17 NY3d 486,489 [2011] [internal quotation marks, brackets and citation omitted]; see People v Magee,135 AD3d at 1177).
Here, the record evidence demonstrated that, prior to all three sales, the CI made controlledphone calls to defendant in the presence of special agents employed by the Drug EnforcementAgency (hereinafter DEA) to arrange for the purchase and sale of more than one-half ounce ofcrack cocaine on each occasion. In these calls, defendant—whose voice was identified byone of the DEA agents (see People vGray, 57 AD3d 1473, 1475 [2008], lv denied 12 NY3d 854 [2009])—andthe CI agreed on a price and amount for the crack cocaine and arranged to meet at specifiedlocations to complete the sales. While the CI and defendant used coded language during thesecalls to discuss the price and amount of the cocaine, the DEA agent that was primarily involvedin the controlled buy operations testified as to the meaning of the coded language and suchlanguage corresponded with the amount of premarked buy money that was ultimately provided tothe CI. In addition, testimony given by the DEA agents involved in the controlled buy operationsestablished that the CI was searched prior to each sale, provided with premarked buy money andan audio recording device to record the sales,[FN1] surveilled throughout the entirety of each saleand did not interact with anyone other than defendant. Testimony from DEA agents alsoestablished that, prior to each sale, defendant was observed either walking or driving from hishome to the prearranged buy locations, where he would only briefly meet with the CI in the CI'svehicle. Their testimony further demonstrated that the CI was searched following each sale andfound to be—on each occasion—without the premarked buy money, but inpossession of more than a half ounce of a substance that later tested positive for cocaine. Finally,a DEA agent testified that, on those occasions that defendant drove to the prearranged location,the vehicle used by defendant was either registered to him or rented by him. [*3]While the CI did not testify,[FN2] and the sales were not directly observed by theDEA agents involved, we are nonetheless satisfied that the foregoing evidence was legallysufficient to support the jury's conclusion that defendant offered to sell the CI crack cocaineweighing more than one-half ounce on three occasions and had both the intent and ability toproceed with those sales (see People v Magee, 135 AD3d at 1177-1180; comparePeople v Samuels, 99 NY2d at 24). While an acquittal would not have been unreasonablegiven the absence of the CI's testimony, we are similarly satisfied that the verdict is not againstthe weight of the evidence (see People vWilliams, 138 AD3d 1233, 1236 [2016], lv denied 28 NY3d 939 [2016];People v Magee, 135 AD3d at 1177-1180).
Next, County Court did not abuse its discretion in reaching a Sandoval compromise.Of the three prior convictions that the People sought permission to question defendant about, ifhe testified, County Court barred inquiry into one of the convictions entirely, but ruled that thePeople could engage in a limited inquiry as to whether defendant was previously convicted oftwo prior felony offenses, without specifying the nature of the underlying crimes.[FN3] Although these two felonyconvictions were remote in time, "there is no bright-line rule of exclusion based upon age ofconviction" (People v Wilson, 78AD3d 1213, 1216 [2010], lv denied 16 NY3d 747 [2011]; see People v Portis, 129 AD3d1300, 1303 [2015], lv denied 26 NY3d 1091 [2015]). Further, the court reasonablyconcluded that the two prior felony convictions, which were drug-related, were probative ofdefendant's credibility because they demonstrated defendant's willingness to place his interestsabove that of society, but that the prejudicial effect of allowing specific inquiry into these crimeswould far outweigh any such probative value (see People v Jackson, 100 AD3d 1258, 1261 [2012], lvdenied 21 NY3d 1005 [2013]; People v Gangar, 79 AD3d 1262, 1263-1264 [2010], lvdenied 16 NY3d 831 [2011]). Accordingly, as County Court struck an appropriate balance inits Sandoval ruling, the ruling did not constitute an abuse of discretion (see People v Nichol, 121 AD3d1174, 1175-1176 [2014], lv denied 25 NY3d 1205 [2015]; People v Phillips, 96 AD3d 1154,1156-1157 [2012], lv denied 19 NY3d 1000 [2012]).
Nor was defendant denied a fair trial because one of the DEA agents testified, while beingcross-examined by defendant, that defendant "was adept at hiding stuff" because he had been"charged with introducing items into a jail facility." While "[e]vidence of prior bad acts oruncharged crimes may be admitted when it falls within the list of recognized Molineuxexceptions, completes the narrative of the charged crimes, provides necessary backgroundinformation or is otherwise 'relevant to some issue other than the defendant's criminal disposition'and its prejudicial effect is outweighed by its probative value" (People v Wells, 141 AD3d 1013,1019 [2016], quoting People v Allweiss, 48 NY2d 40, 47 [1979]; see People v Burnell, 89 AD3d1118, 1120 [2011], lv denied 18 NY3d 922 [2012]), there was no pretrialMolineux ruling here. [*4]Following the DEA agent'simproper testimony, County Court sustained defense counsel's immediate objection, struck thetestimony from the record and instructed the jury to disregard the remark, stating that "[i]t [was]not evidence in th[e] case." Defense counsel did not request a mistrial and there was no furtherdiscussion regarding the improper testimony. As such, defendant failed to preserve for ourreview his argument that County Court should have granted him a mistrial (see People v Heesh, 94 AD3d1159, 1163 [2012], lv denied 19 NY3d 961 [2012]; People v Hughes, 93 AD3d 889,891 [2012], lv denied 19 NY3d 961 [2012]). To the extent that defendant's challenge tothe improper testimony is preserved, we find that County Court's prompt curative actions ofstriking the testimony and instructing the jury to disregard the testimony were sufficient toremedy any resulting prejudice (seePeople v Ruiz, 148 AD3d 1212, 1216 [2017]; People v Hughes, 93 AD3d at891; compare People v Wallace, 31AD3d 1041, 1044-1045 [2006]).
Finally, we are unpersuaded by defendant's contention that his sentence is harsh andexcessive. In sentencing defendant to three concurrent terms of 10 years in prison, County Courtimposed a sentence below the maximum permissible sentence (see Penal Law§ 70.71 [3] [b] [ii]), as well as the People's pretrial plea offers. Considering relevantsentencing factors, including defendant's criminal history and prior convictions relating to thesale of drugs, we discern no abuse of discretion in the sentence imposed by County Court, norany extraordinary circumstances warranting a reduction of the sentence in the interest of justice(see People v Danford, 88 AD3d1064, 1068 [2011], lv denied 18 NY3d 882 [2012]; People v Marrero, 41 AD3d 1091,1091 [2007]).
To the extent that we have not expressly addressed any of defendant's remaining contentions,they have been considered and found to be lacking in merit.
McCarthy, J.P., Rose, Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:These audio recordings, whichwere admitted into evidence and played for the jury, corroborated the testimony that defendantentered the CI's vehicle and seemed to demonstrate that an exchange took place.
Footnote 2:On appeal, defendant argues thathe was denied his right to confront the CI. However, inasmuch as defendant did not raise thisargument in County Court, it is not preserved for our review (see People v Wilson, 144 AD3d 1500, 1501 [2016], lvdenied 28 NY3d 1151 [2017]). Further, although the CI's absence is not adequately explainedon the record, we note that County Court issued a missing witness charge to the jury.
Footnote 3:County Court further ruled thatthe People would be permitted to more fully inquire as to these convictions if defendant deniedtheir existence.