| People v Smith |
| 2018 NY Slip Op 00042 [157 AD3d 978] |
| January 4, 2018 |
| Appellate Division, Third Department |
[*1](January 4, 2018)
| The People of the State of New York, Respondent, v AnthonyM. Smith, Also Known as Smurf, Appellant. |
Robert A. Regan, Glens Falls, for appellant, and appellant pro se.
Chad W. Brown, District Attorney, Johnstown (Christopher M. Stanyon of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Fulton County (Giardino, J.),rendered August 21, 2014, upon a verdict convicting defendant of the crimes of criminal sale of acontrolled substance in the third degree and criminal possession of a controlled substance in thethird degree.
In November 2013, members of the City of Gloversville Police Department conducted twocontrolled buys in which a confidential informant (hereinafter CI) purchased crack cocaine fromdefendant. Defendant was thereafter charged in a multicount indictment in connection with thesetwo controlled buys. Prior to trial, defendant moved to suppress identification evidence on thebasis that the identification procedure was unduly suggestive. After a Wade hearing,County Court denied the suppression motion. Following a jury trial, defendant was acquitted ofthe charges related to the first controlled buy but convicted of criminal sale of a controlledsubstance in the third degree and criminal possession of a controlled substance in the thirddegree—charges that related solely to the second controlled buy. Defendant's subsequentmotion under CPL 330.30 to set aside the verdict was denied. County Court sentenced defendant,as a second felony offender, to an aggregate prison term of 15 years, to be followed by threeyears of postrelease supervision. Defendant appeals. We affirm.
Defendant first argues that County Court erred in determining that a Rodriguezhearing was unnecessary. Inasmuch as the record reveals that the pretrial identificationprocedures were [*2]not unduly suggestive (see generally People v Staton, 28 NY3d1160, 1161 [2017]), a Rodriguez hearing was unnecessary to determine whether theCI's identification of defendant was merely confirmatory. As to the photo array, County Courtfound that the photographs consisted of six African-American males of the same age, all withvery short hair or shaved heads and with average skin tones. Given that our review of the photoarray confirms these findings, we find no merit in defendant's claim that the identification wasunduly suggestive (see People v Chipp, 75 NY2d 327, 336 [1990], cert denied498 US 833 [1990]; People vStevens, 87 AD3d 754, 755 [2011], lv denied 18 NY3d 861 [2011]). We alsoreject defendant's contention that, because of lighting, his white shirt depicted in his photographwas very bright and stood out and, therefore, created a substantial likelihood of being singled out.Even though the shading and background of the photographs varied, "the differences were not ofsuch quality as would taint the array" (People v Ruiz, 148 AD3d 1212, 1214 [2017] [internal quotationmarks and citation omitted], lv denied 30 NY3d 983 [2017]; see People v Mould, 143 AD3d1186, 1188 [2016], lv denied 28 NY3d 1187 [2017]). Contrary to defendant'sargument, the mere fact that the detective who prepared the photo array and the CI who identifieddefendant shared a last name does not mean the pretrial identification procedures employed wereunduly suggestive.[FN1]
We are unpersuaded by defendant's argument that County Court erred in allowing the Peopleto refer to him by his nickname, Smurf. Defendant's nickname was not inherently prejudicial andseveral witnesses at trial testified that they knew defendant exclusively under that nickname.Based on the foregoing and given that defendant's nickname was probative of his identity,County Court did not abuse its discretion in permitting the People to use defendant's nickname(see People v Hernandez, 89 AD3d1123, 1125 [2011], lv denied 20 NY3d 1099 [2013]; People v Dye, 26 AD3d 764, 765[2006], lv denied 6 NY3d 847 [2006]; People v Candelario, 198 AD2d 512, 513[1993], lv denied 83 NY2d 803 [1994], lv denied upon reconsideration 83 NY2d965 [1994]).
Regarding defendant's challenge to County Court's Molineux ruling, "evidence ofuncharged crimes or prior bad acts may be admitted where they fall within the recognizedMolineux exceptions—motive, intent, absence of mistake, common plan orscheme and identity—or where such proof is inextricably interwoven with the chargedcrimes, provides necessary background or completes a witness's narrative" (People v Womack, 143 AD3d1171, 1173 [2016] [internal quotation marks, brackets and citations omitted], lvdenied 28 NY3d 1151 [2017]; seePeople v Pigford, 148 AD3d 1299, 1301 [2017], lv denied 29 NY3d 1085[2017]) and the probative value of such evidence outweighs any undue prejudice to the defendant(see People v Wells, 141 AD3d1013, 1019 [2016], lv denied 28 NY3d 1189 [2017]). With respect to the evidencethat a CI previously gave defendant $200 to purchase crack cocaine from him, defense counselopened the door to such evidence by continuously referring to this $200 sum in his openingstatement and commenting that the exchange would "become important later" (see People v DeCarr, 130 AD3d1365, 1366-1367 [2015], lv denied 26 NY3d 1008 [2015]; see generally People vRojas, 97 NY2d 32, 39 [2001]).[FN2] With respect to the evidence of the traffic [*3]citation issued to defendant on the day after the controlled buys,such evidence was probative of defendant's identity. In this regard, the description of the vehicleby the police officer who executed the traffic stop matched the description provided by otherwitnesses as to the vehicle used by defendant during the controlled buys. Furthermore, afterweighing the probative and prejudicial value of this evidence, County Court minimized anyprejudice by precluding the People from eliciting the nature of the traffic violation and the factthat defendant pleaded guilty to it (seePeople v Watson, 150 AD3d 1384, 1386 [2017], lv denied 29 NY3d 1135[2017]; People v Lownes, 40 AD3d1269, 1270 [2007], lv denied 9 NY3d 878 [2007]) and by giving a limitinginstruction to the jury (see People vDavis, 144 AD3d 1188, 1190 [2016], lv denied 28 NY3d 1144 [2017]; People v Nealon, 36 AD3d 1076,1078 [2007], lv denied 8 NY3d 988 [2007]).
Defendant also contends that the People failed to provide a race-neutral reason in response tohis Batson challenge related to the People's use of a peremptory challenge on juror No.197, the sole African-American prospective juror. Once the moving party establishes a primafacie showing of discrimination, the nonmovant must articulate a race-neutral reason forexcluding the prospective juror (see People v Smocum, 99 NY2d 418, 422 [2003]). "Asto the second prong of the analysis, a neutral explanation in this context is an explanation basedon something other than the race of the juror and the issue is the facial validity of the prosecutor'sexplanation" (People v Knowles, 79AD3d 16, 20 [2010] [internal quotation marks and citation omitted], lv denied 16NY3d 896 [2011]).
During voir dire, the prosecutor explained that she led an investigation into a facility inwhich the husband of juror No. 197 was the executive director and that such investigation led tothe demotion and transfer of the husband to a different facility. The prosecutor thus argued thatjuror No. 197's impartiality might be affected due to this investigation. County Court acceptedthis reason, noting, "It's logical." Inasmuch as "[t]he prosecutor's explanations . . .need not be persuasive or plausible but only facially permissible" (People v Callicut, 101 AD3d 1256,1261 [2012] [internal quotation marks and citations omitted], lv denied 20 NY3d 1096[2013]), we conclude that the People satisfied their step two burden (see People v Ardrey, 92 AD3d967, 970 [2012], lv denied 19 NY3d 861 [2012]; People v Ebron, 90 AD3d 1243, 1244 [2011], lv denied 19NY3d 863 [2012]; People v Lee, 80AD3d 877, 879 [2011], lv denied 16 NY3d 833 [2011]; People v Coleman, 4 AD3d 677,679 [2004], lv denied 2 NY3d 797 [2004], lv denied upon reconsideration 3NY3d 672 [2004]). Defendant's argument that County Court erred in failing to proceed to stepthree of the Batson analysis is unpreserved (see People v Acevedo, 141 AD3d 843, 847 [2016]). In any event,by denying defendant's Batson challenge, the court thereby implicitly determined that theprosecutor's race-neutral explanations for exercising a peremptory challenge were not pretextual(see People v Dandridge, 26 AD3d779, 780 [2006]; People vBeverly, 6 AD3d 874, 876 [2004], lv denied 3 NY3d 637 [2004]).
As to defendant's claim that he received the ineffective assistance of counsel, it wasincumbent upon defendant to show that "his attorney failed to provide meaningful representationand the absence of strategic or other legitimate explanations for counsel's allegedly deficientconduct" (People v Bullock, 145AD3d 1104, 1106 [2016] [internal quotation marks, ellipsis, [*4]brackets and citations omitted]; see People v Ramos, 133 AD3d 904, 909 [2015], lv denied26 NY3d 1149 [2016]; People vWheeler, 124 AD3d 1136, 1138-1139 [2015], lv denied 25 NY3d 993 [2015])."There can be no denial of effective assistance of trial counsel arising from counsel's failure tomake a motion or argument that has little or no chance of success" (People v Criss, 151 AD3d 1275,1280 [2017] [internal quotation marks and citations omitted], lv denied 30 NY3d 979[2017]; see People v Thorpe, 141AD3d 927, 935 [2016], lv denied 28 NY3d 1031 [2016]).
Contrary to defendant's assertion, his counsel's failure to request a missing witness charge didnot amount to ineffective assistance given that "defendant has not shown that the [witness] wasin the People's control or that [the witness] would have provided material, noncumulativetestimony" (People v Kindred, 100AD3d 1038, 1041 [2012], lv denied 21 NY3d 913 [2013]). We also rejectdefendant's contention that his counsel was ineffective by failing to move for a mistrial after twowitnesses gave misleading testimony inasmuch as corrective measures were taken to remedy anyinaccuracies (see generally People vDiviesti, 101 AD3d 1163, 1164-1165 [2012], lv denied 20 NY3d 1097 [2013]).Nor are we persuaded by defendant's argument that his counsel was deficient for failing toadvance an argument of pretext in response to the People's race-neutral reason for excludingjuror No. 197 and effectively allowing County Court to compress steps two and three of theBatson framework (see generallyPeople v Ali, 89 AD3d 1412, 1414 [2011], lv denied 18 NY3d 881 [2012]).Viewing the record as a whole and taking into account that defendant was acquitted of somecharges, we find that defendant was not deprived of meaningful representation (see People v Zayas-Torres, 143 AD3d1176, 1179-1180 [2016], lv denied 30 NY3d 984 [2017]; People v Cox, 129 AD3d 1210,1215 [2015], lv denied 26 NY3d 966 [2015]).
Defendant's claim, raised in his CPL 330.30 motion, that the People committed aBrady violation is without merit inasmuch as the record does not indicate that therequested evidence even existed (seePeople v Stacconi, 151 AD3d 1395, 1397 [2017]). Defendant's argument that CountyCourt denied him his right to a fair and public trial when it excluded his fiancée from thecourt room is unpreserved in the absence of a timely objection (see People v Hawkins, 110 AD3d1242, 1244 [2013], lv denied 22 NY3d 1041 [2013]). Even if adequately preserved,defendant's Sixth Amendment right to a public trial was not violated (see People v DeFreitas, 116 AD3d1078, 1079 [2014], lv denied 24 NY3d 960 [2014]). Defendant's remainingcontentions, including those raised in his pro se supplemental brief, have been examined and arelacking in merit.
Garry, P.J., Lynch, Clark and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:We note that a differentdetective, and not the one who compiled the photographs in the array and who defendant allegedwas related to the CI, met with the CI and showed him the photo array.
Footnote 2:Even if defense counsel had notopened the door, the evidence of the prior drug transaction was inextricably interwoven with thecharged crimes (see People vJackson, 100 AD3d 1258, 1261 [2012], lv denied 21 NY3d 1005 [2013]).Furthermore, any prejudice was ameliorated by the court's limiting instructions (see People v Torres, 19 AD3d 732,734 [2005], lv dismissed 5 NY3d 810 [2005]).