| People v Byrd |
| 2017 NY Slip Op 05769 [152 AD3d 984] |
[*1]
| 1 The People of the State of New York,Respondent, v Rashad Byrd, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), forappellant.
Mary E. Rain, District Attorney, Canton (Jason P. Weinstein, New York State ProsecutorsTraining Institute, Inc., Albany, of counsel), for respondent.
Clark, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.),rendered December 15, 2014, convicting defendant following a nonjury trial of the crime ofcriminal possession of a controlled substance in the third degree.
In March 2014, defendant was charged by indictment with, as relevant here, criminalpossession of a controlled substance in the third degree based upon his possession of eightbaggies of crack cocaine weighing a combined total of roughly two grams.[FN1] Following a nonjurytrial,[FN2] defendant wasconvicted of criminal possession of a controlled substance in the third degree and sentenced, as asecond felony offender, to a prison term of eight years, followed by three years of postreleasesupervision. Defendant now appeals, and we affirm.
[*2] Initially, we find no merit to defendant's assertion that he did not voluntarily waive hisright to remain silent and that County Court therefore should have suppressed statements hemade to law enforcement officers prior to his invocation of his right to counsel. "The People borethe burden of proving the voluntariness of defendant's statements beyond a reasonable doubt,including that any custodial interrogation was preceded by the administration and defendant'sknowing waiver of his Miranda rights" (People v Culver, 69 AD3d 976, 976 [2010] [citation omitted]; see People v Rizvi, 126 AD3d1172, 1173 [2015], lv denied 25 NY3d 1076 [2015]). To that end, the People reliedon the uncontroverted testimony of the arresting officer, who stated that, once defendant exitedhis vehicle, defendant was patted down, handcuffed and placed in the front seat of his policevehicle. The arresting officer testified that he then—at 7:20 p.m.—read defendanthis Miranda rights from a preprinted card and that defendant expressly stated that heunderstood each individual right. The arresting officer also testified that defendant orally waivedhis Miranda rights and responded in the affirmative when asked if he was willing toanswer questions. According to the arresting officer, defendant invoked his right to counsel sixminutes later, at 7:26 p.m., after making various incriminating statements.
While defendant contends that his waiver was involuntary because the police officersinvolved in his apprehension had ordered him out of his vehicle with their firearms drawn, thearresting officer testified that, at the time that defendant was placed in the police vehicle, readMiranda rights and questioned, his weapon was reholstered beneath his coat and that theofficers who remained on the scene had also reholstered their respective weapons. Consideringthe totality of the circumstances and according appropriate deference to County Court's factualand credibility determinations (seePeople v Rankin, 127 AD3d 1335, 1339 [2015], lv denied 26 NY3d 1149[2016]; People v Nadal, 131 AD3d729, 730 [2015], lv denied 26 NY3d 1041 [2015]), we find no basis to disturbCounty Court's determination that, from 7:20 p.m. to 7:26 p.m., defendant voluntarily waived hisMiranda rights (see People v Rizvi, 126 AD3d at 1173; People v Baker, 27 AD3d 1006,1008 [2006], lv denied 7 NY3d 785 [2006]).[FN3] Accordingly, County Court properly denieddefendant's motion to suppress the statements he made to law enforcement prior to invoking hisright to counsel.
Defendant also contends that his conviction for criminal possession of a controlled substancein the third degree was not supported by legally sufficient evidence of his intent to sell and is alsoagainst the weight of the evidence. "A verdict is legally insufficient [when], viewing the record inthe light most favorable to the prosecution, there is no 'valid line of reasoning and permissibleinferences from which a rational jury could have found the elements of the crime proved beyonda reasonable doubt' " (People vNicholas, 130 AD3d 1314, 1315 [2015], quoting People v Danielson, 9 NY3d 342, 349 [2007]). In determiningwhether a conviction is against the weight of the evidence, we first assess whether, based on allof the credible evidence, a different result would have been unreasonable; where a differentoutcome would not have been unreasonable, we then " 'weigh the relative probative forceof conflicting testimony and the relative strength of conflicting inferences that may be drawnfrom the testimony,' " while viewing [*3]the evidence in aneutral light and according deference to the factfinder's credibility assessments (People v Romero, 7 NY3d 633,643 [2006], quoting People v Bleakley, 69 NY2d 490, 495 [1987]; see People v Gibson, 121 AD3d1416, 1418 [2014], lv denied 24 NY3d 1119 [2015]).
"A person is guilty of criminal possession of a controlled substance in the third degree whenhe [or she] knowingly and unlawfully possesses . . . a narcotic drug with intent tosell it" (Penal Law § 220.16 [1]). Because direct evidence of a defendant's mentalstate is often unavailable (see People vRodriguez, 17 NY3d 486, 489 [2011]; People v Smith, 79 NY2d 309, 315[1992]), intent to sell a controlled substance may be properly inferred from the underlying factsand circumstances, including the amount of controlled substances recovered and the manner inwhich it was packaged (see People v Sanchez, 86 NY2d 27, 35 [1995]; People v Montford, 145 AD3d1344, 1346 [2016], lv denied 29 NY3d 999 [2017]; People v Harvey, 96 AD3d 1098,1100 [2012], lv denied 20 NY3d 933 [2012]; People v Barton, 13 AD3d 721, 723 [2004], lv denied 5NY3d 785 [2005]). Further, in this context, the word sell is broadly defined, and "means to sell,exchange, give or dispose of to another, or to offer or agree to do the same" (Penal Law§ 220.00 [1]; see People v Starling, 85 NY2d 509, 514 [1995]; People v Kindred, 100 AD3d1038, 1040 [2012], lv denied 21 NY3d 913 [2013]; People v Patchen, 46 AD3d 1112,1113 [2007], lv denied 10 NY3d 814 [2008]).
Here, although unartfully presented, the trial evidence established that roughly two grams ofcrack cocaine were found in the rental vehicle that defendant was operating at the time that hewas stopped by law enforcement officers and arrested for earlier alleged criminal activity. Thearresting officer testified that the crack cocaine was found in two separate bags, with one of thebags containing "seven individually-wrapped corner baggies tied off," and that, in his experience,the individual baggies were "packaged for resale." The arresting officer also testified that rentalvehicles are commonly used for narcotics transportation because such vehicles cannot be seizedby police. Further, the trial evidence demonstrated that a 9 millimetermagazine—unaccompanied by a pistol—was found in the rental vehicle and that adigital scale was discovered in a hotel room to which defendant admitted he had access. Mostsignificant, however, were defendant's statements to the arresting officer prior to his invocationof his right to counsel. In particular, defendant admitted that, earlier in the day, he had provided acertain friend with cash to purchase marihuana for him and that, when the friend delivered themarihuana, he gave the friend crack cocaine for his efforts. The arresting officer testified thatdefendant had been surveilled by police for several hours prior to his arrest and that he had beenobserved with the particular friend in the rental vehicle. As the foregoing evidence provided avalid line of reasoning and permissible inferences from which County Court could haverationally concluded that defendant knowingly and unlawfully possessed the crack cocaine withan intent to sell, defendant's conviction for criminal possession of a controlled substance in thethird degree is supported by legally sufficient evidence (see People v Kindred, 100 AD3dat 1040; People v Patchen, 46 AD3d at 1113-1114; People v Belo, 240 AD2d964, 966 [1997], lv denied 91 NY2d 869 [1997]).
As to our weight of the evidence review, it would not have been unreasonable for CountyCourt to have reached a different conclusion on the question of intent, given that defendantpossessed rolling papers and marihuana and stated that he liked to smoke marihuana with crackcocaine, and that the quantity of crack cocaine found in the vehicle could have been for personaluse. However, having independently weighed the evidence, including the conflicting inferencesthat may be drawn from the testimony, we are satisfied that the conviction is not against theweight of the evidence (see People vBlalark, 126 AD3d 1124, 1125-1126 [2015], lv denied 27 NY3d 992 [2016];People v Kindred, 100 AD3d at 1040; People v Patchen, 46 AD3d at 1113-1114;People v Mitchell, 208 AD2d 992, 993-994 [1994], lv denied 84 NY2d [*4]1035 [1995]).
Next, defendant argues that County Court exceeded the bounds of its authority by assumingthe role of an advocate, rather than an impartial factfinder. "[A] [t]rial [j]udge in criminal mattersmay take an active part in the examination of witnesses where questioning is necessary to elicitsignificant facts, to clarify or enlighten an issue or merely to facilitate the orderly and expeditiousprogress of the trial" (People v Mendes, 3 NY2d 120, 121 [1957]; see People v YutWai Tom, 53 NY2d 44, 57 [1981]; People v Storfs, 47 NY2d 882, 883 [1979]).However, because the court's principle "function is to protect the record, not to make it"(People v Yut Wai Tom, 53 NY2d at 58), such power must "be exercised sparingly,without partiality, bias or hostility, as excessive interference or the suggestion of an opinion onthe part of the [t]rial [j]udge might well prove decisive in the minds of the jury" (People vStorfs, 47 NY2d at 883-884 [citations omitted]; see People v Arnold, 98 NY2d 63,67-68 [2002]; People v De Jesus, 42 NY2d 519, 522-524 [1977]).
Here, the trial record is sprinkled with instances in which County Court asked questionsduring the People's case and instructed the prosecutor as to the types of questions and evidencethat could be used to prove the element of intent to sell. Although the court's unnecessary lectureson the prosecutor's performance are cause for concern, there was no risk that the court'sinterference would unduly influence the jury, as this was a nonjury trial. In addition, most of thecourt's interjections served to expedite the trial and clarify the record. While County Court"would have been well advised to have played a less active role in the conduct of the trial," ourreview of the record, as a whole, does not evince that County Court was biased against defendantor that the court's interference deprived him of a fair trial (People v Tucker, 140 AD2d887, 891 [1988], lv denied 72 NY2d 913 [1988]; see People v Lupo, 92 AD3d 1136, 1138 [2012]).
Defendant failed to preserve his further argument that, in the absence of a Molineuxproffer, County Court should have precluded evidence that he gave his friend crack cocaineearlier in the day for purchasing marihuana on his behalf (see People v Davis, 144 AD3d 1188, 1190 [2016], lvdenied 28 NY3d 1150 [2017]; People v Cox, 129 AD3d 1210, 1214 [2015], lv denied 26NY3d 966 [2015]). In any event, even if this argument were properly preserved, we would find itto be without merit. "[A] defendant is not entitled as a matter of law to pretrial notice of thePeople's intention to offer [Molineux] evidence . . . or to a pretrial hearingon the admissibility of such evidence" (People v Small, 12 NY3d 732, 733 [2009] [citation omitted]; accord People v Lawrence, 141 AD3d1079, 1080 [2016], lv denied 28 NY3d 1029 [2016]). While "a prosecutor seeking tointroduce Molineux evidence 'should ask for a ruling out of the presence of thejury' " (People v Small, 12 NY3d at 733, quoting People v Ventimiglia,52 NY2d 350, 362 [1981]), this was a bench trial. Moreover, evidence of the prior drugtransaction, particularly since it occurred on the same day and which took place in the vehicle inwhich police subsequently discovered the drugs at issue, is probative of defendant's intent to sell,and such probative value outweighed the risk of prejudice (see People v Kims, 24 NY3d 422, 439 [2014]; People v Buchanan, 95 AD3d1433, 1436 [2012], lv denied 22 NY3d 1039 [2013]).
We need only briefly discuss defendant's remaining arguments. Having reviewed the recordand defense counsel's performance in totality, we find that defendant received meaningfulrepresentation (see People v Benevento, 91 NY2d 708, 714-715 [1998]; People vWilbur, 108 [*5]AD3d 878, 880 [2013]).[FN4] Finally, considering defendant'scriminal history, which includes several prior drug-related offenses, we are unpersuaded that thesentence imposed was harsh or excessive (see People v Brock, 107 AD3d 1025, 1029 [2013], lvdenied 21 NY3d 1072 [2013]; People v Pearson, 69 AD3d 1226, 1228 [2010], lv denied15 NY3d 755 [2010]; People v Patchen, 46 AD3d at 1114-1115). Defendant's remainingcontentions, to the extent they have not been addressed, have been examined and found to belacking in merit.
Egan Jr., J.P., Lynch, Devine and Aarons, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:By the same indictment,defendant was also charged with two counts of criminal sale of a controlled substance in the thirddegree. However, those charges were dismissed by the People prior to trial.
Footnote 2:While defendant's brief includeda challenge to his waiver of his right to a jury trial, he has since withdrawn that claim.
Footnote 3:To the extent that defendantchallenges statements he made prior to being read his Miranda rights, County Courtproperly determined that such statements were admissible, as the record establishes that theywere "spontaneous statements made while in custody which [were] not the product ofquestioning or its functional equivalent" (People v Smith, 21 AD3d 587, 588 [2005], lv denied 5NY3d 833 [2005]; see People vHaskins, 121 AD3d 1181, 1183 [2014], lv denied 24 NY3d 1120 [2015]).
Footnote 4:To the extent that defendantargues that defense counsel was ineffective for failing to challenge the search warrant or itsapplication, such claim involves matters outside of the record and is more properly the subject ofa CPL article 440 motion (see People v Brown, 45 NY2d 852, 853-854 [1978]; People v Perry, 148 AD3d 1224,1225 n [2017]).