| People v Brooks |
| 2017 NY Slip Op 08406 [155 AD3d 1429] |
| November 30, 2017 |
| Appellate Division, Third Department |
[*1](November 30, 2017)
| The People of the State of New York, Respondent, v StephenBrooks, Also Known as Lay Low, Appellant. |
Marshall Nadan, Kingston, for appellant, and appellant pro se.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered October 23, 2014, upon a verdict convicting defendant of the crimes of criminal sale ofa controlled substance in the third degree (two counts) and criminal possession of a controlledsubstance in the third degree (two counts).
Defendant, using a confidential informant as a go-between, sold crack cocaine to a policeofficer on two occasions in 2013. The confidential informant facilitated the sales by ferrying thedrugs and buy money between adjacent hotel rooms, with defendant in one and investigators inthe other. The investigators placed defendant under arrest soon after the second sale wasconsummated. He was thereafter charged in an indictment with two counts each of criminal saleof a controlled substance in the third degree and criminal possession of a controlled substance inthe third degree. A jury trial ensued that ended with defendant being convicted as charged.County Court sentenced defendant to an aggregate prison term of 13 years to be followed bypostrelease supervision of three years, and he now appeals.
We affirm. Defendant asserts in his pro se supplemental brief that he was subjected to anunlawful warrantless arrest in the hotel room and that the evidence recovered in its aftermath[*2]should have been suppressed.[FN*] A hotel guest is indeed "entitled to FourthAmendment protection during the rental period" of his or her room (People v McFall, 72 AD3d 1128,1129 [2010], lv denied 15 NY3d 776 [2010]; see People v Wood, 31 NY2d 975,975 [1973]), including restrictions upon warrantless entry into a residence to effect an arrest(see Payton v New York, 445 US 573, 590 [1980]; People v Garvin, 30 NY3d 174, 177-179 [2017];People v McBride, 14 NY3d440, 445 [2010], cert denied 562 US 931 [2010]; People v Bell, 5 AD3d 858, 860-861 [2004]). The hotel room wasnot registered in defendant's name and had been paid for by investigators, however, and it wasincumbent upon defendant to show that he had "a legitimate expectation of privacy in thepremises" (People v Bell, 5 AD3d at 861; see People v Lopez, 104 AD3d 876, 876 [2013], lv denied21 NY3d 944 [2013]). The testimony at the suppression hearing reflected that defendant was notstaying in the hotel room and only went there after the confidential informant called and offeredhim the chance to "make lots of money." Deferring to the assessment of County Court that thistestimony was credible (see People vKing, 137 AD3d 1424, 1425 [2016], lv denied 27 NY3d 1070 [2016]), we findthat defendant's minimal, commercial connection to the hotel room did not afford him alegitimate expectation of privacy therein (see Minnesota v Carter, 525 US 83, 90-91[1998]; People v Zappulla, 282 AD2d 696, 697 [2001], lv denied 96 NY2d 909[2001]).
Defendant also attacks portions of the Molineux ruling in which County Courtallowed the People to introduce evidence that the confidential informant had previously solddrugs on defendant's behalf in 2005 and 2013. While "evidence of uncharged crimes isinadmissible where its purpose is only to show a defendant's bad character or propensity towardscrime," when the proof "is relevant to some issue other than the defendant's criminal disposition,it is generally held to be admissible on the theory that the probative value will outweigh thepotential prejudice to the accused" (People v Morris, 21 NY3d 588, 594 [2013] [internal quotationmarks and citations omitted]; see Peoplev Valentin, 29 NY3d 150, 155 [2017]). The earlier drug sales here explained not onlywhy investigators set up the controlled drug sales after speaking to the confidential informant,but also why defendant agreed to come to the hotel. This evidence was probative in that it shedlight upon his intent to make the charged sales and "provided a complete and coherent narrativeof the events leading to [his] arrest" (People v Antegua, 7 AD3d 466, 467 [2004], lv denied 3NY3d 670 [2004]; see People v Alvino, 71 NY2d 233, 245-246 [1987]; People v Buchanan, 95 AD3d1433, 1436 [2012], lv denied 22 NY3d 1039 [2013]).
County Court went on to determine that the probative value of this proof outweighed thepotential for prejudice, allowed its admission and provided proper limiting instructions to thejury regarding its use. The probative value of the evidence relating to the 2013 sales undoubtedlyoutweighed the possibility of prejudice, but the balance was far more debatable with regard to thecumulative and dated proof of the 2005 sales (see People v Ely, 68 NY2d 520, 530[1986]; People v Tatro, 53 AD3d781, 785 [2008], lv denied 11 NY3d 835 [2008]). Even assuming that the admissionof proof relating to the 2005 sales was error, however, the error was harmless since there wasoverwhelming evidence of defendant's guilt and no significant probability that he would havebeen acquitted had the error not occurred (see People v Alfaro, 19 NY3d 1075, 1076 [2012]; People vTatro, 53 AD3d at 785).
Defendant finally argues that County Court erred in refusing to disqualify the DistrictAttorney's office. He alleges in particular that the District Attorney, while working as anAssistant Public Defender, represented him in the criminal case stemming from the 2005 drugsales. The case was still pending when the District Attorney assumed his current office in 2008,at which point the District Attorney stated that he had represented defendant in that or anothercase and requested that a special prosecutor be appointed to see the case through to its [*3]conclusion. That being said, "the fact that the District Attorney mayhave previously represented defendant in prior, unrelated criminal matters, without more, doesnot require his disqualification" (Peoplev Giroux, 122 AD3d 1063, 1064 [2014], lv denied 25 NY3d 1164 [2015]; see People v Durham, 148 AD3d1293, 1294-1295 [2017], lv denied 29 NY3d 1091 [2017]; People v Early,173 AD2d 884, 885 [1991], lv denied 79 NY2d 1000 [1992]). The District Attorneyplayed, at most, a minor role in the case relating to the 2005 sales by "filling in" for assignedcounsel at a court appearance. Defendant made no effort to show what confidences, if any, theDistrict Attorney learned during his fleeting association with the prior case that could be abusedin the current one. Thus, in the absence of "actual prejudice arising from a demonstrated conflictof interest or a substantial risk of an abuse of confidence," we agree with County Court thatdisqualification was not warranted (Matter of Schumer v Holtzman, 60 NY2d 46, 55[1983]; see People v Zinkhen, 89AD3d 1319, 1320 [2011], lv denied 18 NY3d 964 [2012]).
McCarthy, J.P., Lynch, Clark and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant also challengesevidence recovered from his cell phones pursuant to search warrants but, inasmuch as defensecounsel explicitly declined to move to suppress that evidence, his challenge is unpreserved(see CPL 470.05 [2]; People vArce, 150 AD3d 1403, 1404 [2017], lv denied 29 NY3d 1090 [2017]).