| People v Wheeler |
| 2018 NY Slip Op 01509 [159 AD3d 1138] |
| March 8, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v William Wheeler, Appellant. |
Salvatore Adamo, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Pritzker, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered December 2, 2015, upon a verdict convicting defendant of the crimes of criminalpossession of a controlled substance in the first degree and criminal possession of a controlledsubstance in the third degree.
During the search of a vehicle in which defendant was a passenger, police officers located abackpack containing a large quantity of cocaine and marihuana. Defendant was subsequentlyindicted on charges of criminal possession of a controlled substance in the first and third degreesand, following a jury trial, he was convicted as charged. He was sentenced, as a second felonydrug offender, to prison terms of 15 years followed by five years of postrelease supervision uponhis conviction of criminal possession of a controlled substance in the first degree, and 12 yearsfollowed by three years of postrelease supervision upon his conviction of criminal possession ofa controlled substance in the third degree, the sentences to run concurrently. Defendant nowappeals.
Defendant contends that the verdict is not supported by legally sufficient evidence and isagainst the weight of the evidence because the People failed to establish that he knowinglypossessed the cocaine and did so with the intent to sell. As relevant here, "[a] person is guilty ofcriminal possession of a controlled substance in the first degree when he or she knowingly andunlawfully possesses . . . one or more preparations, compounds, mixtures orsubstances containing a narcotic drug and said preparations, compounds, mixtures or substancesare of an aggregate weight of eight ounces or more" (Penal Law § 220.21 [1]). "Aperson is guilty of criminal possession of a controlled substance in the third degree when he [orshe] knowingly and [*2]unlawfully possesses . . . anarcotic drug with intent to sell it" (Penal Law § 220.16 [1]).
At trial, a police investigator testified that, in December 2013, he was outside of 575Washington Avenue in the City of Albany with agents of the Rensselaer County Sheriff's Office,the Drug Enforcement Agency (hereinafter DEA), the City of Albany Police Department, theState Police and the Department of Homeland Security when he observed a Honda pull up to theopposite side of the street. The investigator observed defendant exit the vehicle with a blue andblack backpack, enter the residence and then return to the passenger seat of the Honda carryingthe same backpack, after which the vehicle drove away. Upon hearing a radio dispatch relayingthese facts, two police officers followed the vehicle and pulled it over after observing varioustraffic infractions. The officers testified that they smelled marihuana upon approaching thevehicle, ordered defendant and the driver to step outside and then initiated a search of its interior.During the search, the officers located a backpack behind the front passenger seat of "the samecolor and approximate size" as the one that defendant carried out of 575 Washington Avenue thatcontained a large quantity of what appeared to be marihuana and cocaine.
A forensic chemist confirmed that one of the substances was pure, unadulterated, cocainehydrochloride with a net weight of 549 grams and revealed that it was separately packaged in six"knotted clear plastic bags." Moreover, a special agent who conducted investigations with theDepartment of Homeland Security approximated that the total value of 549 grams of cocainewould have been between $50,000 and $54,900 in December 2013, and that quantity plays alarge role in determining whether the possession is for personal use or distribution purposes. ThePeople also elicited testimony from the driver of the Honda, who revealed that, when he anddefendant were at the Albany County Jail on the underlying charges, he told defendant thatdefendant "needed to get [him] out of this situation [because he] ha[d] nothing to do with it," towhich defendant replied, "don't worry about it, I got this, I'll take care of you, I'll make sure thatyou won't get in any trouble." The driver maintained that defendant asked him to "take thecharges" during a subsequent conversation.
When viewing this evidence in the light most favorable to the People (see People vBleakley, 69 NY2d 490, 495 [1987]; People v Collier, 146 AD3d 1146, 1150 [2017], lv denied30 NY3d 948 [2017]), we find that legally sufficient evidence was provided as to the knowingelement of criminal possession of a controlled substance in the first degree by the combinationof, among other proof, the 549 grams of cocaine found in the backpack that defendant wasobserved carrying out of the residence and his statements to the driver of the Honda that wereindicative of his consciousness of guilt. Moreover, the manner in which the cocaine waspackaged, coupled with its weight and substantial street value, permitted a rational inference thatdefendant possessed the cocaine with the intent to sell, which supports his conviction of criminalpossession of a controlled substance in the third degree (see People v Williams, 150 AD3d 1315, 1318-1319 [2017], lvdenied 30 NY3d 984 [2017]; Peoplev Whitehead, 130 AD3d 1142, 1145 [2015], affd 29 NY3d 956 [2017]). As tothe weight of the evidence, we conclude that a different verdict would have been unreasonableunder the circumstances and therefore reject this claim outright (see People v Hadfield, 119 AD3d1224, 1226 [2014], lv denied 24 NY3d 1002 [2014]; People v Collins, 288AD2d 756, 758 [2001], lv denied 97 NY2d 752 [2002]).
Next, County Court did not err in denying defendant's motion to suppress the physicalevidence. Defendant maintains that the police lacked reasonable suspicion to seize him atgunpoint given that they had observed only two traffic violations (see People v De Bour,40 NY2d 210, 223 [1976]). The testimony at the suppression hearing, however, revealsotherwise. While the mere observation of the two traffic infractions, and nothing more, wouldnot have justified a gunpoint stop (cf.People v Moore, 6 NY3d 496, 498-499 [2006]), this issue cannot be [*3]analyzed in isolation from the surrounding circumstances. Indeed,shortly before the officers were informed by the radio dispatch that defendant had exited thepremises at 575 Washington Avenue with a backpack and began following the vehicle, theyreceived a request from DEA agents to help assist in executing a search warrant at the premises.Mindful that "persons who are engaged in narcotics transactions are frequently armed" (People v Barrett, 14 AD3d 369,370 [2005] [internal quotation marks, brackets, ellipsis and citation omitted]), and given thetestimony from one of the officers that he drew his weapon for safety purposes based uponinformation that he had obtained from DEA agents, we cannot conclude that the brief show offorce was unreasonable or that the officers lacked reasonable suspicion to believe that defendantwas engaged in criminal activity (seePeople v Moore, 6 NY3d 496, 498-499 [2006]; People v Barrett, 14 AD3d at370; People v Williams, 305 AD2d 804, 806 [2003]; cf. People v Mabeus, 68 AD3d 1557, 1560-1561 [2009], lvdenied 14 NY3d 842 [2010]). Finally, based upon the officers' information and uponsmelling marihuana emanating from the vehicle, there was probable cause to search" 'every part of the vehicle and its contents that may conceal the object of thesearch' " (People v Horge,80 AD3d 1074, 1075 [2011], quoting United States v Ross, 456 US 798, 825[1982]).
Defendant also maintains that County Court erred in denying his motion to dismiss theindictment pursuant to CPL 30.30 because the waiver of his speedy trial rights was invalid. Wedisagree. "Defense counsel may waive a defendant's unripe speedy trial rights. Such a waiver isequivalent to an extension of time for the People to proceed with prosecution. When defensecounsel requests or acquiesces in a delay in the proceedings, such time is excludable for statutoryspeedy trial purposes" (People vGarcia, 33 AD3d 1050, 1052 [2006] [citations omitted], lv denied 9 NY3d 844[2007]). Here, defendant's former attorney testified that he received a grand jury notice onDecember 6, 2013, after which he called the District Attorney's office to determine whether aplea deal could be negotiated. Following this conversation, defense counsel met with defendantand advised him to waive his statutory speedy trial rights as leverage to negotiate a plea. Defensecounsel testified that defendant consented to this advice and, thereafter, he contacted theprosecutor, who orally agreed not to present the case to the grand jury. Although we reiterate that"prosecutors would be well advised to obtain unambiguous written waivers in situations likethese" (People v Dickinson, 18NY3d 835, 836 [2011] [internal quotation marks and citation omitted]), we neverthelessconclude that the People met their burden of demonstrating that defense counsel orally waiveddefendant's speedy trial rights in the early part of December 2013 to pursue a plea agreement,rendering the period associated therewith chargeable to defendant and excludable under the CPL30.30 calculation until the waiver was revoked in or around June 2014 (see People v Waldron, 6 NY3d463, 467 [2006]; compare People vSmith, 110 AD3d 1141, 1143 [2013]). The testimony that defendant expresseddisagreement with counsel's decision to waive his speedy trial rights at certain points during therepresentation does not change the outcome, as a waiver under CPL 30.30 "does not involve sucha fundamental decision that it cannot be made by counsel" (People v Trepasso, 197 AD2d891, 891 [1993], lv denied 82 NY2d 854 [1993]; see People v Garcia, 33 AD3d at1052). Accordingly, defendant's argument with respect to the waiver is unavailing.
The Sandoval compromise was not an abuse of discretion inasmuch as County Courtappropriately limited the scope of the inquiry with respect to defendant's prior convictions andbalanced their probative value against the potential for prejudice (see People v Serrano-Gonzalez, 146AD3d 1013, 1017 [2017], lv denied 29 NY3d 952 [2017]; People v Martin, 136 AD3d 1218,1219 [2016], lv denied 28 NY3d 972 [2016]; People v Ramos, 133 AD3d 904, 908 [2015], lv denied 26NY3d 1149 [2016]). Moreover, defendant was not deprived of a fair trial when County Courtallowed references to his nickname, as it was not inherently prejudicial when viewed in contextof the charges and was probative of his identity (see People v Hernandez, 89 [*4]AD3d 1123, 1125 [2011], lv denied 20 NY3d 1099 [2013];People v Hoffler, 41 AD3d 891,892 [2007], lv denied 9 NY3d 962 [2007]).
We also reject defendant's contention that County Court erred in admitting two tape-recordedtelephone conversations that occurred when he was in jail on the underlying charges. Inasmuchas call No. 2 was not admitted into evidence, defendant's argument with respect thereto iswithout merit. As to call No. 3, the statements implying that defendant had a prior criminalrecord did not violate the court's Sandoval ruling, which permitted the People to askdefendant whether he was convicted of felonies in 2000 and 2007. Moreover, defendant'sstatements during call No. 3 indicating that the driver of the Honda should take the charges wasprobative of his consciousness of guilt and the danger of undue prejudice was minimal (see People v Marcus, 101 AD3d1046, 1048 [2012]).
Defendant next contends that the testimony of one of the arresting officers with respect to thetraffic stop and defendant's actions after his arrest should have been precluded because pertinentRosario material contained in radio transmissions and audio and visual recordings of theofficers' vehicle was destroyed prior to trial. Instead of granting defendant's preclusion motion,County Court decided to sanction the People for the Rosario violations by giving anadverse inference charge to the jury. In our view, the adverse inference charge was sufficient toremedy the violation and, accordingly, County Court did not abuse its discretion in denying thepreclusion motion (see People v Martinez, 71 NY2d 937, 940 [1988]; People v Poulos, 144 AD3d 1389,1392-1393 [2016]; People v Davis,18 AD3d 1016, 1018-1019 [2005], lv denied 5 NY3d 805 [2005]).
We are similarly unpersuaded by defendant's argument that he was deprived of a fair trial dueto four statements made by the prosecutor during summation. The comments with respect to thefact that defendant was seen rocking back and forth in the police car and the statements drawingthe jury's attention to his repeated attempts to get the driver of the Honda to take responsibilityfor the underlying charges constituted fair commentary on the evidence and the inferences to bedrawn therefrom (see People vWarner, 45 AD3d 1182, 1183 [2007]). Moreover, the prosecutor did not misstate thelaw regarding defendant's dominion and control of the backpack, and his statement—that"[the driver] came in here and he told you the truth"—while improper, was cured byCounty Court's instruction that the jury was to disregard it as it was the jury's province to assessthe driver's credibility. Given counsel's "wide latitude during summations," and considering thePeople's summation as a whole, we find that the statements with which defendant takes issuewere not "so egregious . . . that they deprive[d] [him] of a fair trial" (People v Rupnarine, 140 AD3d1204, 1205 [2016]).
Contrary to defendant's contentions, County Court's jury instructions were proper. Initially,defendant's argument that County Court erred in declining to give the destroyed evidence chargethat he requested relative to the booking room video is unpersuasive, as any prejudice in thisrespect was adequately addressed when County Court gave an adverse inference charge formissing Rosario material relative to the booking room video (compare CJI2d[NY]Adverse Inference—Destroyed Evidence, with CJI2d[NY] Adverse Inference:Missing Rosario Material). Nor did County Court abuse its discretion in denying defendant'srequest for a missing witness charge with respect to a police witness who was present at 575Washington Avenue when defendant was observed leaving the premises, as defendant indicatedthat the witness would provide only cumulative testimony with respect to his actions there (see People v Durant, 26 NY3d341, 347-348 [2015]; People vJackson, 151 AD3d 1466, 1469 [2017], lv denied 30 NY3d 950 [2017]).Similarly, County Court did not err in giving an expanded charge on the definition of"knowingly." Although defendant contends that an expanded charge was improper [*5]in light of the fact that the People's theory was premised uponconstructive possession, he fails to recognize that the People were required to prove bothknowledge and the "ability and intent to exercise dominion or control over the contraband" tosecure a guilty verdict upon this theory (People v Burns, 17 AD3d 709, 711 [2005] [internal quotationmarks and citation omitted]).
Finally, we reject defendant's claim that the sentence is harsh and excessive. Defendant is asecond felony drug offender who was convicted of a class A-I felony, defined in Penal Lawarticle 220. As such, his sentencing exposure ranged from 12 to 24 years (see Penal Law§ 70.71 [3] [b] [i]). Given that his sentence fell on the low end of this range andconsidering his prior criminal history, we find no abuse of discretion nor any extraordinarycircumstances warranting a reduction of the sentence in the interest of justice (see People v Crippen, 156 AD3d946, 953 [2017]; People vMalloy, 152 AD3d 968, 971 [2017], lv denied 30 NY3d 981 [2017]).
Defendant's contentions with respect to the CPL 710.30 notice, his conduct in the policevehicle and County Court's failure to give an interested witness charge are unpreserved for ourreview, and his remaining contentions lack merit.
McCarthy, J.P., Devine, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.