| People v Shortell |
| 2017 NY Slip Op 08410 [155 AD3d 1442] |
| November 30, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Kevin A. Shortell, Appellant. |
Adam G. Parisi, Schenectady, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Stitt of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.),rendered May 5, 2015, upon a verdict convicting defendant of the crimes of criminal sale of acontrolled substance in the third degree (three counts) and criminal possession of a controlledsubstance in the third degree (three counts).
Following three drug transactions with two confidential informants (hereinafter the CIs),defendant was arrested and charged with three counts of criminal sale of a controlled substancein the third degree and three counts of criminal possession of a controlled substance in the thirddegree. After a jury trial, defendant was convicted of all counts and sentenced, as a second felonyoffender, to an aggregate prison term of 18 years followed by nine years of postreleasesupervision. Defendant now appeals.
Defendant contends that County Court erred in permitting the first CI to identify him at trial,arguing that an unduly suggestive pretrial identification procedure tainted the CI's subsequentidentification of defendant. As an initial matter, it appears from the record that County Courtsimultaneously conducted both Rodriguez and Wade hearings regarding thepretrial identification procedure. We agree with defendant that because Suzanne Ewing, aninvestigator who testified at the hearing, knew no specifics regarding the CI's prior encounterswith defendant and did not specify the number of prior contacts that they had with one another,the People did not sufficiently prove, under the standard to be employed at a Rodriguezhearing, that the police procedure was confirmatory in nature (see People v Casanova, 119 AD3d976, 980 [2014]; People v Coleman, 306 AD2d 549, 551 [2003]).
[*2] Notwithstanding, a CPL 710.30 notice was filed in this caseand a Wade hearing was also conducted (compare People v Casanova, 119 AD3dat 980; People v Coleman, 306 AD2d at 551), during which information establishing anindependent basis for the first CI's in-court identification of defendant was revealed. Therefore,even though it was improper for Ewing to show the first CI a single photograph of defendantprior to the second controlled buy, this CI gave an accurate description of defendant shortly afterthe controlled buy on December 4, 2013, prior to being shown the photograph, therebydemonstrating the accuracy of his identification independent of any police procedure.Additionally, the first CI was the individual who suggested defendant as the target of thecontrolled buy, thereby further demonstrating his familiarity with defendant. Moreover, the CIhad face-to-face contact with defendant during the controlled buys; therefore, the Peopleestablished that the first CI had an independent basis to identify defendant, untainted by theimpermissible identification procedure and independent of any prior contacts with defendant (see People v Stevens, 87 AD3d754, 756 [2011], lv denied 18 NY3d 861 [2011]; People v Hall, 57 AD3d 1222, 1224-1225 [2008], lv denied12 NY3d 817 [2009]; People vRockwell, 18 AD3d 969, 969-970 [2005], lv denied 5 NY3d 768 [2005]). Wealso find that, given the first CI's testimony regarding the controlled buys and his priorknowledge of defendant, the investigator's corroboration of defendant's identity as the supplier,testimony of the second CI regarding her controlled buy and the in-court identification ofdefendant by the second CI, the proof of defendant's guilt was overwhelming and any error inadmitting the first CI's identification of defendant was harmless (see People v Harris, 80NY2d 796, 798 [1992]; People v Hall, 57 AD3d at 1225).
Defendant also argues that County Court erred in permitting the People to introduce a privateFacebook message in which he made a threat to the second CI, claiming a lack of foundation. "Arecorded conversation—such as a printed copy of the content of a set of cell phone instantmessages—may be authenticated through, among other methods, the 'testimony of aparticipant in the conversation that it is a complete and accurate reproduction of the conversationand has not been altered' " (Matter of Colby II. [Sheba II.], 145 AD3d 1271, 1273 [2016],quoting People v Agudelo, 96 AD3d611, 611 [2012], lv denied 20 NY3d 1095 [2013]). "The credibility of theauthenticating witness and any motive [he or] she may have had to alter the evidence go to theweight to be accorded this evidence, rather than its admissibility" (People v Agudelo, 96AD3d at 611 [citation omitted]). Here, the second CI had been Facebook friends with defendantfor two years prior to trial and stated that she knew the message came from defendant's accountbecause an icon of defendant's picture was displayed next to it. She also testified that she hadfirsthand knowledge of the content of the Facebook message, therefore, she was an appropriatewitness to authenticate the message (see id. at 612). Additionally, the Facebook messagewas sufficiently authenticated by the second CI as she explained that the copy shown toher—the same copy that was ultimately admitted as an exhibit at trial—accuratelydepicted the message that defendant had sent to her (see Matter of Colby II. [Sheba II.],145 AD3d at 1273).
Defendant further argues that the content of the Facebook message was inadmissibleMolineux evidence. Although the message does constitute evidence of prior bad acts(see People v Washington, 306 AD2d 701, 702 [2003], lv denied 100 NY2d 600[2003]; People v Maddox, 272 AD2d 884, 885 [2000], lv denied 95 NY2d 867[2000]), the message is probative of defendant's identity and of his consciousness of guilt (see People v McCommons, 143 AD3d1150, 1154 [2016], lv denied 29 NY3d 999 [2017]; People v Peele, 73 AD3d 1219,1221 [2010], lv denied 15 NY3d 894 [2010]). However, the record reflects that CountyCourt failed to engage in an analysis of whether the probative value of such evidence outweighedits potential for undue prejudice (seePeople v Lindsey, 75 AD3d 906, 908 [2010], lv denied 15 NY3d 922 [2010]; People v Wright, 5 AD3d 873, 876[2004], lv denied 3 NY3d 651 [2004]). [*3]Nonetheless,because the evidence against defendant was overwhelming, this error was harmless (see People v Kalina, 149 AD3d1264, 1267 [2017], lv denied 29 NY3d 1092 [2017]; People v Scaringe, 137 AD3d1409, 1417-1418 [2016], lv denied 28 NY3d 936 [2016]).
As to defendant's contention that County Court erred in failing to give a limiting instructionregarding the proper use of this evidence and that he was denied a fair trial as a result thereof,this issue is unpreserved for review as defendant never requested such an instruction (see People v Reynoso-Fabian, 134AD3d 1141, 1146 [2015]; People vWilliams, 25 AD3d 875, 876 [2006], lv denied 6 NY3d 854 [2006]). In anyevent, a limiting instruction was unnecessary here "since the threat was directly attributable todefendant" (People v Williams, 25 AD3d at 876; see People v King, 175 AD2d266, 266 [1991], lv denied 79 NY2d 828 [1991]). Because a limiting instruction wasunnecessary under the circumstances—and defense counsel made pretrial motions,effectively cross-examined the People's witnesses, made appropriate objections, and advocatedfor defendant during summation—defendant was provided with meaningful representationand, accordingly, defendant's ineffective assistance of counsel claim arising from counsel'sfailure to request a limiting instruction as to the proper use of the Facebook message must fail(see People v Van Demps, 118AD3d 1146, 1148 [2014], lv denied 23 NY3d 1061 [2014]; People v Jones, 101 AD3d 1241,1242-1243 [2012], lv denied 21 NY3d 944 [2013]).
Despite conceding that he failed to object, and therefore preserve this issue, defendant alsocontends that the People elicited testimony that improperly bolstered and vouched for the CIs (see People v Rivera, 31 AD3d1060, 1061 [2006], lv denied 7 NY3d 869 [2006]). Were this issue before us wewould find that this testimony, from investigators on redirect, did not constitute improperbolstering because defendant opened the door to such testimony by challenging the credibility ofthose witnesses on cross-examination (see People v Allah, 57 AD3d 1115, 1118 [2008], lv denied12 NY3d 780 [2009]; People vTimmons, 78 AD3d 1241, 1245 [2010], lv denied 16 NY3d 837 [2011]).Moreover, had it been improper bolstering to elicit testimony from Ewing confirming that the CIshad identified defendant from photographs (see People v LaDuke, 140 AD3d 1467, 1470-1471 [2016]), anyerror in this respect would be harmless given the unequivocal in-court identification of defendantby the CIs and the overwhelming proof of defendant's guilt (see id. at 1471; People v Rivera, 31 AD3d 1060,1061 [2006], lv denied 7 NY3d 869 [2006]). Given that any errors in this regard wereharmless, defendant's related ineffective assistance of counsel claim arising from defensecounsel's failure to object to such testimony must fail because defendant was not deprived ofmeaningful representation as a result thereof.
Defendant also contends that County Court abused its discretion in permitting two jurors tocontinue serving on the jury. Specifically, these jurors revealed, after the trial had alreadycommenced, that they knew the second CI. Defendant claims that County Court erred in denyinghis motion for a mistrial or to dismiss these two jurors. Initially, although defendant did notexplicitly invoke the provisions of CPL 270.35 or mention the "grossly unqualified" standard inmoving for a mistrial or to remove the jurors from the jury panel, this issue is properly preservedfor our review, as the People concede, because County Court engaged in an inquiry into whetherany recognition of the second CI would render these two jurors not impartial. Turning to themerits, County Court engaged in a probing and tactful colloquy as to whether these jurors couldbe impartial (see People vLancaster, 143 AD3d 1046, 1051 [2016], lv denied 28 NY3d 1147 [2017]).Although juror No. 3 revealed that the second CI had previously provided babysitting services toher, she clarified that the second CI had not engaged in such services for over seven years.Furthermore, even though this juror is friends with the second CI's mother, she unequivocally andconsistently reiterated that her connection with the second CI would not impact her ability toserve on the jury and that she was able to render a decision based solely on the evidence. Therelationship between juror No. 10 and the second CI is even more attenuated, as they merelyattended the same high school but were neither in the same graduating class nor interacted witheach other. This juror similarly assured County Court that his casual acquaintance with thesecond CI would not impact his ability to serve as a juror. [*4]Accordingly, juror No. 10 was not grossly unqualified to continueserving on the jury. Consequently, under the circumstances, County Court properly denieddefendant's motion for a mistrial or to discharge both jurors from the jury panel (see CPL270.35 [1]; People v Lancaster, 143 AD3d at 1051; People v Colburn, 123 AD3dat 1294-1295; People v Peele, 73 AD3d at 1220).
Finally, defendant claims that his sentence was harsh and excessive. Initially, we note thatdefendant faced up to 36 years in prison as a second felony offender. Further, given defendant'slengthy criminal history and the fact that he engaged in multiple drug sales with two differentindividuals, we find no abuse of discretion on the part of County Court or any extraordinarycircumstances that warrant a reduction of the sentence in the interest of justice (see People v Cooley, 149 AD3d1268, 1271 [2017], lv denied 30 NY3d 979 [2017]; People vMcGowan, 149 AD3d 1161, 1163 [2017], lv denied 29 NY3d 999 [2017]; People v Abare, 86 AD3d 803, 806[2011], lv denied 19 NY3d 861 [2012]).
Peters, P.J., Garry, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.