| People v Miller |
| 2018 NY Slip Op 02364 [160 AD3d 1040] |
| April 5, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Maurice Miller, Appellant. |
Matthew C. Hug, Albany, for appellant.
Joel E. Abelove, District Attorney, Troy (Vincent J. O'Neill of counsel), for respondent.
Pritzker, J. Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.),rendered April 6, 2015, upon a verdict convicting defendant of the crime of criminal sale of acontrolled substance in the third degree.
Defendant was indicted for the crime of criminal sale of a controlled substance in the thirddegree for allegedly selling heroin to a paid confidential informant (hereinafter CI). After a jurytrial, defendant was convicted as charged and sentenced as a second felony drug offender to sixyears in prison followed by two years of postrelease supervision. Defendant now appeals and weaffirm.
Initially, we reject defendant's contention that he was denied his right to appear before thegrand jury. Defendant's counsel at the time was served with a CPL 190.50 notice on June 4,2015, which indicated that the People would present a case against defendant to a grand jury thefollowing day at 10:00 a.m. Defendant never served on the People written notice of his intent totestify before the grand jury. While the People's notice gave defendant approximately 24 hours orless to exercise his statutory right to appear at the grand jury proceeding, this was a reasonableperiod of time pursuant to the statute as there were no exceptional circumstances that precludeddefendant from conferring with his attorney about the decision to testify or otherwise inhibitedhis ability to notify the People of his intent to testify (see People v Dorsey, 151 AD3d 1391, 1392-1393 [2017], lvdenied 30 NY3d 949 [2017]; seegenerally People v Wilkerson, 140 AD3d 1297, 1299-1300 [2016], lv denied 28NY3d 938 [2016]).
[*2] Turning to defendant'sevidentiary claims, his challenge to the legal sufficiency of the evidence is unpreserved given thathis motion for a trial order of dismissal at the close of the People's case was not specificallydirected at the error urged before this Court (see People v Hawkins, 11 NY3d 484, 492 [2008]; People v Cruz, 131 AD3d 724,724-725 [2015], lv denied 26 NY3d 1087 [2015]). "Nevertheless, our weight of theevidence review necessarily involves an evaluation of whether all elements of the charged crimewere proven beyond a reasonable doubt" (People v Odofin, 153 AD3d 972, 974 [2017] [internal quotationmarks, brackets and citations omitted]; see People v Cruz, 131 AD3d at 725). As relevanthere, "[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," such as heroin (PenalLaw § 220.39 [1]; see Public Health Law § 3306 [I] [c][11]).
John Comitale, a police detective, testified that, in June 2014, he was contacted by the CI,who stated that he could buy heroin from defendant. Comitale thereafter acted as the "controllingofficer" during the ensuing "buy and bust" operation that occurred later that same day. Comitaleexplained that the CI came to Comitale's office and called defendant to order 10 bags of heroin,which defendant stated would cost $70. Comitale obtained three $20 bills and two $5 bills from apolice department safe to use for buy money and photocopied those bills, indicating the date onthe photocopy. Comitale then searched the CI and, after failing to find any money or contraband,gave the CI the buy money and equipped him with a transmitter. Comitale testified that the CIthereafter left with the buy money, and a "take-down team" was assembled and positioned toarrest defendant after the transaction. Comitale then followed the CI in an unmarked vehicle untilthe CI indicated over the transmitter that he could see defendant. Comitale pulled overapproximately 55 or 60 feet from the CI's parked vehicle and, using binoculars, observeddefendant approach the CI's window and engage in a "hand-to-hand transaction." Following thetransaction, defendant walked away from the CI's vehicle, and the CI said a code word over thetransmitter to indicate that the deal was complete. Comitale gave a description of defendant'sclothing and the direction that he was walking to the near-by police units and then followed theCI to a prearranged location where he took from the CI 10 red "glassine wax envelopes with anoff-whitish, brownish powder inside." Comitale paid the CI $100 for participating in the buy andbust. He then placed the envelopes in an evidence bag and later turned the bag over to JohnColaneri, a police sergeant. Comitale testified that Colaneri gave him the currency confiscatedfrom defendant after he was arrested, which Comitale examined by comparing each bill's serialnumber to those photocopied before the operation, and that $70 of the currency matched thephotocopied buy money.
The CI testified that earlier the same day, he approached defendant on the street, who herecognized because they were both from the same area. The CI testified that he then contactedComitale and thereafter placed a telephone call to defendant from Comitale's office, duringwhich he ordered 10 bags of heroin for $70. Defendant told the CI where they would meet tocomplete the transaction. The CI further testified that after he and his vehicle were searched, hereceived $70 in buy money from the police—consisting of three $20 bills and two $5 bills.The CI testified that defendant called and changed the location of the deal and, when the CIarrived at the new location, he saw defendant and parked his car. At that point, defendantapproached the CI's passenger window, the CI gave defendant the buy money and defendant gavethe CI 10 red "wax baggies" that he later gave to Comitale.
William Bowles, a second police detective, testified that, although he did not see thetransaction between the CI and defendant, he heard Comitale's description of defendant and wasable to identify and arrest him based on that description. Bowles testified that while arresting[*3]defendant, he found money on defendant's person. Colaneritestified regarding the 10 red bags that Comitale gave him and money that Bowles gave him,which he took to the police department for processing. There was also testimony from WilliamGillett, a civilian who works for the police department's property evidence room, regardingstorage of the evidence bag and subsequent transportation of the bag to the State Police lab fortesting. Kathryn Botting, a forensic scientist for the State Police, testified that she tested thesubstance contained in the 10 red glassine bags and determined that it was heroin. Consideringthe foregoing testimony, it would not have been unreasonable for the jury to come to a differentconclusion given minor inconsistencies between Comitale's testimony at trial and his earliertestimony before the grand jury and at a pretrial suppression hearing, as well as inconsistencies inthe CI's testimony at trial. However, viewing the evidence in a neutral light and affording duedeference to the jury's credibility determinations, the verdict was not against the weight of theevidence (see People v Torres, 146AD3d 1086, 1087-1088 [2017], lv denied 29 NY3d 1087 [2017]; People v Nichol, 121 AD3d 1174,1176-1177 [2014], lv denied 25 NY3d 1205 [2015]).
Defendant also asserts that his conviction should be reversed because he was not providedwith notice, pursuant to CPL 710.30 (1), that the CI identified him using a picture provided bythe police. We disagree. During the CI's initial testimony, he averred that he only knew defendantby his street name until Comitale pulled up defendant's picture on a computer and told the CIdefendant's real name. Defendant thereafter moved for preclusion of any identification of himbecause he was not provided notice pursuant to CPL 710.30. Before taking a position ondefendant's motion, the People requested an opportunity to confer with the witnesses off therecord because this was the first that the People had heard of an identification procedure duringthis operation. County Court granted that application. When the court reconvened, the Peoplealleged that no identification procedure was used and that the CI misspoke. The court thereafterordered, with defendant's consent, a "preclusion hearing" to first determine whether anidentification procedure took place prior to the buy and bust operation, and, if so, whetherpreclusion of any testimony related thereto was the appropriate remedy. At the hearing, bothComitale and the CI testified that there was no identification procedure, and the CI testified that,in his prior testimony, he was talking about general procedure, not this particular case. At theconclusion of the hearing, County Court credited Comitale's testimony that there was, in fact, noidentification procedure and that the CI simply misspoke or confused this buy and bust with adifferent operation. We accord deference to this determination (see generally People v Hayden, 155AD3d 1309, 1310 [2017]; People vSteigler, 152 AD3d 1083, 1084 [2017], lv denied 30 NY3d 983 [2017]) andconclude that it was not error to deny defendant's request to preclude evidence.
We also hold that County Court did not err by denying defendant's request for an expandedjury charge regarding the CI's credibility because he was a paid informant and was compensatedfor participating in the buy and bust operation and for testifying in the resulting criminal action.Given defendant's explicit efforts throughout to impeach the CI's credibility by highlighting hismotivation to lie in this case, County Court did not abuse its discretion by concluding that thegeneric jury charge on a witness's motivation to lie was sufficient and that an additional chargedirected only at the CI's credibility was unnecessary (see People v Inniss, 83 NY2d 653,658-659 [1994]; People v Acevedo,112 AD3d 985, 988 [2013], lv denied 23 NY3d 1017 [2014]).
Finally, we find no merit to defendant's claim that the sentence imposed was harsh andexcessive. "A sentence that falls within the permissible statutory range will not be disturbedunless it can be shown that the sentencing court abused its discretion or extraordinarycircumstances exist warranting a modification" (People v Malloy, 152 AD3d 968, 971 [2017][*4][internal quotation marks and citation omitted], lv denied 30NY3d 981 [2017]; see People vBooker, 141 AD3d 834, 837 [2016], lv denied 28 NY3d 1026 [2016]). Givendefendant's extensive criminal history, we perceive neither an abuse of discretion nor anyextraordinary circumstances warranting a modification of the sentence, which was less than themaximum (see People v Cooley,149 AD3d 1268, 1271 [2017], lv denied 30 NY3d 979 [2017]; People vBooker, 141 AD3d at 837).
McCarthy, J.P., Lynch, Clark and Aarons, JJ., concur. Ordered that the judgment isaffirmed.