| People v Quintana |
| 2018 NY Slip Op 01501 [159 AD3d 1122] |
| March 8, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v JasonQuintana, Also Known as John, Appellant. |
Lucas G. Mihuta, Albany, for appellant.
Chad W. Brown, District Attorney, Johnstown (Amanda M. Nellis of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Fulton County (Hoye, J.), renderedDecember 15, 2014, upon a verdict convicting defendant of the crimes of criminal sale of acontrolled substance in the third degree (two counts) and criminal possession of a controlledsubstance in the third degree (two counts).
In July 2013, members of the City of Gloversville Police Department conducted twocontrolled buys in which a confidential informant (hereinafter CI) purchased heroin fromdefendant. Defendant was thereafter charged in an indictment with two counts of criminal sale ofa controlled substance in the third degree and two counts of criminal possession of a controlledsubstance in the third degree. Prior to trial, defendant moved to suppress identification evidenceon the basis that the identification procedure was unduly suggestive. A Wade hearingensued, after which County Court found that the photo array used to identify defendant was notunduly suggestive and denied defendant's motion to suppress that photo array. Following a jurytrial, defendant was convicted of all four counts. County Court thereafter sentenced defendant, asa second felony offender, to an aggregate prison term of eight years, to be followed by three yearsof postrelease supervision. Defendant now appeals.
As an initial matter, defendant argues that the indictment is defective as it does not containthe requisite signature of the grand jury foreperson as required by statute (see CPL [*2]200.50 [8]). Inasmuch as the absence of a jury foreperson'ssignature on an indictment is a "technical, nonjurisdictional defect" (People v Stauber,307 AD2d 544, 545 [2003], lv denied 100 NY2d 599 [2003]; see People v Pigford, 148 AD3d1299, 1302 [2017], lv denied 29 NY3d 1085 [2017]), defendant's failure to move todismiss the indictment on this basis renders his claim unpreserved (see People v Pigford,148 AD3d at 1302; People v Burch,97 AD3d 987, 988 [2012], lv denied 19 NY3d 1101 [2012]; People v Striplin, 48 AD3d 878,879 [2008], lv denied 10 NY3d 871 [2008]). Were this claim preserved, we wouldnonetheless find it to be without merit. An indictment signed by the District Attorney with anaffixed backer signed by the grand jury foreperson satisfies the statutory requirements(see CPL 200.50 [8], [9]; Peoplev Broomfield, 128 AD3d 1271, 1272 [2015], lv denied 26 NY3d 1086 [2015];People v Burch, 97 AD3d at 988; People v Striplin, 48 AD3d at 879). Here, therecord before us reflects that the indictment contains a backer with the grand jury foreperson'ssignature, along with "the name of the District Attorney . . . typed on the same page"(People v Pigford, 148 AD3d at 1302).
Defendant contends that the verdict is not supported by legally sufficient evidence and wasagainst the weight of the evidence. The standard for reviewing the legal sufficiency of theevidence in a criminal case is well-established (see People v Bueno, 18 NY3d 160, 169 [2011]; People vBleakley, 69 NY2d 490, 495 [1987]; People v Byrd, 152 AD3d 984, 986 [2017]). As relevant here, "[a]person is guilty of criminal sale of a controlled substance in the third degree when he [or she]knowingly and unlawfully sells . . . a narcotic drug" (Penal Law§ 220.39 [1]). Additionally, "[a] person is guilty of criminal possession of acontrolled substance in the third degree when he [or she] knowingly and unlawfully possesses. . . a narcotic drug with intent to sell" (Penal Law § 220.16 [1]).
At trial, the testimony established that defendant sold heroin to a CI during two controlledbuys that were monitored by the members of the City of Gloversville Police Department.Detective Sergeant Michael Jory explained that, for both controlled buys, he searched the CI toensure that the CI had no money or illegal items, provided him with the money to be used for thecontrolled buys, and observed him depart the predetermined location and return to that location atthe conclusion of each buy. Detective Michael Calbet testified that, for both controlled buys, hepersonally observed the CI walk to defendant's house, enter a pathway toward the back porch,which could be used to access defendant's apartment, and then exit the porch sometime later andwalk back to Jory. Captain Anthony Clay testified that, with regard to the first controlled buy, heobserved the CI walk to defendant's house and then walk back to Jory. In addition to identifyingdefendant in court as the person from whom he purchased heroin on both occasions, the CItestified that, as to each controlled buy, he was searched by Jory prior to the controlled buy, givenbuy money and dropped off at a predetermined location at which point he walked to defendant'shouse. With regard to the first controlled buy, the CI explained that he intended to purchaseheroin from defendant's brother but, once he arrived at the house, he purchased heroin fromdefendant. The CI also described how, upon arriving at defendant's house and knocking on thedoor, defendant let him enter, whereupon the CI purchased five bags of heroin at a total cost of$160 and then left the residence to return and give the five bags of heroin to Jory. The Peoplealso elicited the testimony of two forensic scientists with the State Police Crime Lab, whoanalyzed the substances obtained from the controlled buys and positively identified eachsubstance obtained as heroin. Moreover, each scientist, in their respective reports, identified thesubstance tested from the controlled buys as "heroin—narcotic drug."
In view of the foregoing evidence, we find that the evidence proffered at trial established,beyond a reasonable doubt, that defendant knowingly and unlawfully possessed heroin, a narcoticdrug, with the intent to sell it and, indeed, knowingly and unlawfully sold heroin to the CI on twoseparate occasions (see Penal Law §§ 220.16 [1]; 220.39 [1]; People v [*3]Gibson, 121 AD3d 1416, 1417-1418 [2014], lvdenied 24 NY3d 1119 [2015]; People v Stevens, 87 AD3d 754, 754-755 [2011], lv denied18 NY3d 861 [2011]). As to defendant's specific contention on appeal that the People failed toprove at trial that heroin is a narcotic, Penal Law § 220.00 defines a controlledsubstance as, among others, those listed under schedule I of Public Health Law§ 3306 (see Penal Law § 220.00 [5]); a "[n]arcotic drug meansany controlled substance listed in schedule . . . I(c)" (Penal Law§ 220.00 [7] [internal quotation marks omitted]) and heroin is listed as a controlledsubstance in the Public Health Law (see Public Health Law § 3306 [I] [c][11]). Inasmuch as both forensic scientists testified that the substances from the controlled buystested positive for heroin and that their reports further identified the substances tested as heroinand a narcotic drug, we find that, when viewing the evidence in the light most favorable to thePeople and drawing every inference in their favor (see People v Danielson, 9 NY3d 342, 349 [2007]; People v Warrington, 146 AD3d1233, 1235 [2017], lv denied 29 NY3d 1038 [2017]), the evidence produced at trialwas also legally sufficient to establish heroin as a narcotic (see People v McGriff, 201AD2d 672, 673 [1994], lv denied 83 NY2d 913 [1994]; People v Jackson, 155AD2d 895, 895 [1989], lv denied 75 NY2d 920 [1990]; People v Tramell, 152AD2d 989, 990 [1989]).
As to defendant's claim that the verdict was against the weight of the evidence, where, ashere, an alternative verdict would not have been unreasonable, we must, "like the trier of factbelow, weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony" (People v Bleakley, 69NY2d at 495 [internal quotation marks and citation omitted]). In particular, defendant contendsthat the testimony of the CI was not corroborated. "An informant acting as an agent of the policewithout the intent to commit a crime is not an accomplice whose testimony requirescorroboration" (People v Thaddies,50 AD3d 1249, 1249-1250 [2008] [internal quotation marks and citations omitted], lvdenied 10 NY3d 965 [2008]; accordPeople v Van Hoesen, 145 AD3d 1183, 1184 [2016]). As the CI acted as an agent of thepolice, the corroboration of his testimony was not required (see People v Van Hoesen,145 AD3d at 1184; People v Thaddies, 50 AD3d at 1249-1250). In any event, thetestimony of the police officers concerning their observations of the controlled buys and theheroin sold to the CI by defendant, which the CI tendered to the police, sufficiently corroboratesthe CI's testimony. Moreover, defendant elicited testimony from the CI regarding, among otherthings, his history of drug abuse and use of heroin, his criminal and arrest history and hisinconsistent statements made between his grand jury and trial testimony, thereby providing thejury with ample information to determine the extent to which the CI should be found credible (see People v Magee, 135 AD3d1176, 1179-1180 [2016]; People vNicholas, 130 AD3d 1314, 1315-1316 [2015]; People v Gibson, 121 AD3d at1418; People v Wingo, 103 AD3d1036, 1036-1037 [2013], lv denied 21 NY3d 1021 [2013]; People v Wilson, 100 AD3d 1045,1046 [2012], lv denied 22 NY3d 998 [2013]). According deference to the credibilitydeterminations made by the jury, and after reviewing and weighing the evidence in the record ina neutral light, we are unpersuaded by defendant's contention that the jury's verdict was againstthe weight of the evidence (see People v Gibson, 121 AD3d at 1418; People v Nichol, 121 AD3d 1174,1176-1178 [2014], lv denied 25 NY3d 1205 [2015]).
Nor are we persuaded by defendant's contention that the photo identification procedure usedby the police was unduly suggestive and that the CI's pretrial identification of him should havebeen suppressed. "[U]nduly suggestive pretrial identification procedures violate due process andtherefore are not admissible to determine the guilt or innocence of an accused" (People vChipp, 75 NY2d 327, 335 [1990], cert denied 498 US 833 [1990]; see People v Lanier, 130 AD3d1310, 1312 [2015], lv denied 26 NY3d 1009 [2015]; People v Smith, 122 AD3d 1162,1163 [2014]). "[A] photo array is unduly suggestive if it depicts a unique characteristic whichdraws the viewer's attention so as to indicate that the police have selected a particular [*4]individual" (People v Smith, 122 AD3d at 1163 [internalquotation marks and citations omitted]; accord People v Yousef, 8 AD3d 820, 821 [2004], lv denied3 NY3d 743 [2004]; see People vPleasant, 149 AD3d 1257, 1257 [2017], lv denied 30 NY3d 1022 [2017]; People v Al Haideri, 141 AD3d742, 743 [2016], lv denied 28 NY3d 1025 [2016]). "While the People have the initialburden of establishing the reasonableness of police conduct and the absence of any unduesuggestion, it is the defendant who bears the ultimate burden of proving that the pretrialidentification procedure was unduly suggestive" (People v Casanova, 152 AD3d 875, 877 [2017] [citations omitted],lv denied 30 NY3d 948 [2017]; accord People v Chipp, 75 NY2d at 335; see People v Cole, 150 AD3d1476, 1478 [2017]).
Having reviewed the testimony from the Wade hearing, we find that the Peoplesatisfied their initial burden to establish that the police conduct was reasonable and that theirprocedure was not unduly suggestive (see People v Cole, 150 AD3d at 1478; People vSmith, 122 AD3d at 1163). We therefore turn to defendant's contention that the photo arraywas unduly suggestive because it purportedly included five African-American men with darkerskin tone than defendant, who is Hispanic-Caucasian. The photo array in question was comprisedof six photos—all of which were taken under similar lighting conditions andindistinguishable backgrounds—of men similar in age, stature and girth, and with little tono hair on their heads and nearly identical facial hair. Their skin tones varied, but at least one ofthe other photographs depicted an individual with nearly identical skin tone to defendant. All sixmen were wearing black shirts, occupied the same amount of space in the photos and werepositioned at nearly the same angle and distance from the camera. Although defendant's necktattoo was partially visible, none of defendant's physical attributes " 'jumped out at theviewer based on the way the array was organized,' thereby signaling that he was the [individual inquestion]" (People v Cole, 150 AD3d at 1478, quoting People v Lind, 20 AD3d 765, 767[2005], lv denied 5 NY3d 830 [2005]; see People v Chipp, 75 NY2d at 336; People v Smart, 142 AD3d 513,514 [2016], affd 29 NY3d 1098 [2017]; People v Spence, 92 AD3d 905, 905 [2012]). Indeed, there is norequirement that the physical characteristics, including skin tone, of the six males depicted in thephoto array be "nearly identical" to defendant (People v Chipp, 75 NY2d at 336; seePeople v Casanova, 152 AD3d at 878; People v Hicks, 110 AD3d 1488, 1489 [2013], lv denied 22NY3d 1156 [2014]; People v Spence, 92 AD3d at 905). In our view, the physicalcharacteristics of the six males depicted are sufficiently similar to alleviate any concerns thatdefendant would be singled out for identification (see People v Cole, 150 AD3d at 1478;People v Pleasant, 149 AD3d at 1258; compare People v Smith, 122 AD3d at1163). Accordingly, we discern no basis upon which to disturb County Court's denial ofdefendant's pretrial suppression motion and find no error with the CI's in-court identification ofdefendant at trial.
We address the balance of defendant's contentions in short order. We find that defendantfailed to adequately preserve his contention that County Court abused its discretion by permittingthe People to inquire into defendant's prior criminal convictions if he testified. "[A] challengebased on a Sandoval error must be preserved for appellate review by a specific, timelyobjection" (People v Jackson, 29NY3d 18, 22 [2017]; see People vCantave, 21 NY3d 374, 379 [2013]). Although defendant moved for and was granted aSandoval hearing, he did not lodge an objection to County Court's Sandovalruling at that time. Moreover, following the People's case-in-chief, and upon the court's inquiry,although defendant declined to testify on his own behalf, generally citing the Sandovalruling and the testimony put forth by the People's witnesses, he failed at that time to eitherregister an objection or apprise the court of the specific grounds upon which he took issue withthe pretrial Sandoval ruling, which would have afforded the court the opportunity torevisit and change its ruling (see People v Jackson, 29 NY3d at 22; People v Garcia-Toro, 155 AD3d1086, 1089 [2017]; compare People v Cantave, 21 NY3d at 379; People v Gliwski, 156 AD3d 1393,1394 [2017]). Similarly, defendant's challenges to the voir dire [*5]procedure employed, as well as to the oaths administered, byCounty Court are unpreserved as he failed to raise an appropriate and timely objectionchallenging the court's use of the juror-by-juror method and its administration of the oaths to thejurors (see CPL 470.05 [2]; People v Wells, 15 NY3d 927, 928 [2010], cert denied 565US 828 [2011]; People v Chancey,127 AD3d 1409, 1412 [2015], lv denied 25 NY3d 1199 [2015]; People v Hebert, 68 AD3d 1530,1532-1533 [2009], lv denied 14 NY3d 841 [2010]; compare People v Powell, 153 AD3d 1034, 1036 [2017]). Nor diddefendant sufficiently preserve any argument concerning the wording of the final jury charge byobjecting to the charge that was given or by requesting different language (see CPL470.05 [2]; People v Davis, 133AD3d 911, 914 [2015]; People vWatkins, 121 AD3d 1425, 1427 [2014], lv denied 24 NY3d 1124 [2015]; People v Hawkins, 110 AD3d1242, 1244 [2013], lv denied 22 NY3d 1041 [2013]).
Finally, we do not find defendant's sentence to be harsh or excessive. At sentencing,defendant expressed remorse for, and insight regarding, the serious nature of his crimes and theireffect on the community. Nevertheless, defendant, who was sentenced as a second felonyoffender, has a significant criminal history that spans his adult life, for which he has previouslyserved two prison terms. Given these circumstances, the serious nature of defendant's crimes andhis prior crimes involving drugs and multiple revocations of parole, we discern no abuse ofdiscretion or any extraordinary circumstances that would warrant a reduction of the sentence inthe interest of justice (see People vJohnson, 151 AD3d 1462, 1466 [2017], lv denied 30 NY3d 1106 [2018]; People v Hawkins, 130 AD3d1298, 1305 [2015], lv denied 26 NY3d 968 [2015]; People v Gibson, 121AD3d at 1419). Defendant's remaining claims, including his assertion that his pretrial and trialcounsels provided ineffective assistance, have been reviewed and determined to be lacking inmerit. Egan Jr., J.P., Lynch, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.