| People v Smith |
| 2017 NY Slip Op 05276 [151 AD3d 1476] |
| June 29, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v JosephSmith, Appellant. |
Cliff Gordon, Monticello, for appellant, and appellant pro se.
D. Holley Carnright, District Attorney, Kingston (Paul DerOhannesian of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered July 14, 2015, upon a verdict convicting defendant of the crimes of criminal possessionof a controlled substance in the third degree, criminal possession of a controlled substance in thefifth degree and false personation.
On April 18, 2014, three plainclothes police officers were in an unmarked car conductingsurveillance of a high-crime area in the City of Kingston, Ulster County. They witnessed anapparent drug transaction between a known drug user and defendant that was aborted when theofficers were spotted. Defendant was also observed to move his right hand up and seeminglyslide his fingers underneath the cap that he was wearing as he walked away. The officers split upand made inquiries of both men, and defendant was placed under arrest when he gaveinconsistent answers about his age and date of birth. The arresting officer patted down defendantand found a small baggie of crack cocaine under his cap. Defendant was transported back to thepolice station, where he was subjected to a strip search that resulted in the discovery of morebaggies of crack cocaine. He was then Mirandized and underwent a videotapedinterrogation.
Defendant was subsequently charged in an indictment with criminal possession of acontrolled substance in the third degree, criminal possession of a controlled substance in the fifthdegree and false personation. Following a hearing, County Court denied defendant's request tosuppress his statements and the physical evidence recovered. Defendant was found guilty ascharged after a jury trial and County Court sentenced him, as a prior violent felony offender, to[*2]an aggregate prison term of 12 years to be followed bypostrelease supervision of five years. Defendant appeals and we now affirm.
County Court did not abuse its discretion in denying defendant's suppression motion. CountyCourt credited the suppression hearing testimony of Detective Eric Van Allen and OfficerRichard Weaver, two of the officers whose surveillance led to defendant's arrest. Van Allentestified that the area under surveillance was known for narcotics activity and, as noted above, heobserved a known drug user approach defendant with money. The two men abruptly parted waysafter spotting the officers, at which point defendant reached under the brim of his cap. Van Allenrelied upon his experience and training to conclude that he had just seen an attempted drugtransaction, providing him with, at a minimum, a founded suspicion of criminality conferring acommon-law right to inquire and seek explanation (see People v Marshall, 5 AD3d 42, 45-46 [2004], lv denied2 NY3d 802 [2004]; People v Nichols, 277 AD2d 715, 717 [2000]; People vAlston, 193 AD2d 883, 885 [1993], lv denied 82 NY2d 890 [1993]).
Weaver was directed to speak to defendant by Van Allen, and he appropriately did so byidentifying himself as a police officer and telling defendant to stop because they "need[ed] totalk" (see People v Reyes, 83 NY2d 945, 946 [1994], cert denied 513 US 991[1994]). Defendant proceeded to lie when asked for his name and date of birth, giving twodifferent years of birth and then providing two ages that did not correspond with either birth year.The transparent lies about basic pedigree information, even after Weaver warned defendant of hisobligation to be forthcoming, gave Weaver probable cause to arrest defendant on a charge offalse personation (see Penal Law § 190.23; People v Isidro, 6 AD3d 1234,1235 [2004], lv denied 3 NY3d 659 [2004]; see also Matter of Travis S., 96NY2d 818, 819-820 [2001]). Defendant's arrest was therefore lawful, and County Court did notabuse its discretion in denying his suppression motion.[FN*]
Turning to the trial itself, defendant argues that the People did not provide proof establishingthat he had "[500] milligrams or more" of cocaine in his possession and, as such, that theconviction of criminal possession of a controlled substance in the fifth degree was not supportedby legally sufficient evidence (Penal Law § 220.06 [5]). A forensic scientisttestified to weighing the cocaine in the various baggies possessed by defendant and finding wellover one gram of cocaine. She explained how she obtained pure cocaine to weigh by subjectingthe material in the baggies to chemical analysis to determine what substances were presentbeyond cocaine and then removing the intermixed material by a separate process. Defendantspeculates that other, unknown substances could have escaped detection and affected themeasurements but, when viewed in the light most favorable to the People, the forensic testimonywas legally sufficient to establish that he possessed over 500 milligrams of cocaine (seePeople v Phillips, 96 [*3]AD3d 1154, 1155 [2012], lvdenied 19 NY3d 1000 [2012]; People v Jennings, 39 AD3d 970, 973 [2007], lv denied 9NY3d 845 [2007]).
Defendant was allowed to proceed pro se at trial after a searching inquiry by County Courtand he questions the subsequent refusal of County Court to let him resume self-representation.County Court made that decision after defendant repeatedly directed defense counsel (whoremained in the courtroom as standby counsel) to represent him only to state later that he wasresuming self-representation, thereby creating confusion and delay. This behavior was consistentwith defendant's overall behavior at trial, which was disorderly and aimed at improperly swayingthe jury in his favor. County Court finally refused to allow defendant to resumeself-representation, observing that he was engaging in intentionally disruptive "conduct whichwould prevent the fair and orderly exposition of the issues" (People v McIntyre, 36 NY2d10, 17 [1974]; accord People vFinkelstein, 28 NY3d 345, 349 [2016]), and we cannot say that the trial court erred indoing so (see People v Gilbo, 52AD3d 952, 954-955 [2008], lv denied 11 NY3d 788 [2008]; People v Cooks, 28 AD3d 362,363 [2006], lv denied 7 NY3d 787 [2006]).
Defendant was not, contrary to his further contention, deprived of the right to testify in hisown defense. County Court sustained an objection to defense counsel's effort to elicit narrativetestimony from defendant, prompting defendant to erupt with accusations that the trial court didnot "want to hear [him] speak" or "want [the jury] . . . to hear the truth." Defendanthad been engaging in disrespectful behavior throughout the trial despite warnings to stop and, atthis point, County Court removed the jury, held defendant in contempt and warned him that hewould be removed from the courtroom or gagged if he became disruptive again. Defendantshifted gears upon hearing this, claiming that he was afraid for his safety and did not want totestify at all. County Court reiterated that defendant remained free to testify if he wished and, inorder to assuage defendant's alleged concerns, promised that he would only be removed, notgagged, if he became disruptive. Defendant refused to retake the stand, at which point the jurywas brought back and instructed by County Court not to draw any inferences from defendant'snewfound unwillingness to testify. County Court "did no more than advise [defendant] ofpossible consequences of which he was entitled to know before deciding to testify," in otherwords, and that advice did not constitute improper intimidation (People v Lee, 58 NY2d773, 775 [1982]; see People vVanluvender, 35 AD3d 238, 239 [2006], lv denied 8 NY3d 928 [2007]).
Defendant argues that the aggregate sentence was harsh and excessive but, in light of hisextensive criminal history, we do not agree. To the extent that we are capable of discerning theremaining arguments advanced in defendant's supplemental pro se brief, we have examined themand found them to be without merit.
McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:It is hard to say whetherdefendant attacks the propriety of the strip search in his supplemental pro se brief, but thecircumstances surrounding his arrest afforded "a reasonable and articulable factual basis" tojustify it (People v George, 127AD3d 1496, 1498-1499 [2015]; seePeople v Hall, 10 NY3d 303, 308-309 [2008], cert denied 555 US 938 [2008]).Likewise, to the extent that defendant challenges the voluntariness of his statements at the policestation, there was no hint in the suppression hearing testimony that he was threatened or coercedto speak, and the interrogation video showed him being Mirandized before it began.