| People v Jackson |
| 2018 NY Slip Op 02505 [160 AD3d 1125] |
| April 12, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Raymond L. Jackson, Also Known as Jay,Appellant. |
Martin J. McGuinness, Saratoga Springs, for appellant, and appellant pro se.
Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Kehm of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Clinton County (McGill, J.),rendered September 9, 2015, upon a verdict convicting defendant of the crimes of criminal saleof a controlled substance in the third degree (three counts) and criminal possession of acontrolled substance in the third degree (six counts).
Defendant sold cocaine and heroin to confidential informants (hereinafter CIs) in threecontrolled transactions monitored by police. Thereafter, larger amounts of both drugs were foundin his vehicle after a traffic stop. Defendant was indicted on three counts of criminal sale of acontrolled substance in the third degree and six counts of criminal possession of a controlledsubstance in the third degree. During pretrial proceedings, he was represented by three differentattorneys, each of whom was relieved by County Court for various reasons. Defendant then choseto represent himself and did so throughout the subsequent jury trial. He was convicted as chargedand sentenced to an aggregate prison term of 13 years, followed by two years of postreleasesupervision (hereinafter PRS).[FN*] Defendant appeals.
[*2] A criminal defendant may invoke the right to representhimself or herself when "the request is timely and unequivocal, there has been a knowing andintelligent waiver of the right to counsel, and [the] defendant has not engaged in conduct thatwould interfere with a fair and orderly trial" (People v Ryan, 82 NY2d 497, 507 [1993];see People v McIntyre, 36 NY2d 10, 17 [1974]; People v Poulos, 144 AD3d 1389, 1391 [2016]). In determiningwhether a waiver is knowing and intelligent, a court's inquiry need not follow any prescribedformula, but must be "geared toward accomplishing the twin goals of adequately warning thedefendant of the risks inherent in proceeding pro se, and apprising the defendant of the singularimportance of the lawyer in the adversarial system of adjudication" (People v Dashnaw, 116 AD3d1222, 1231 [2014] [internal quotation marks, brackets and citations omitted], lvdenied 23 NY3d 1019 [2014]; see People v Arroyo, 98 NY2d 101, 104 [2002]).
We are satisfied that County Court conducted a sufficient "searching inquiry" in response todefendant's request to proceed pro se (People v Slaughter, 78 NY2d 485, 491 [1991][internal quotation marks and citations omitted]). Defendant repeated his desire to representhimself on several occasions during pretrial proceedings, and County Court engaged him inmultiple discussions of the risks of such a course. Defendant was initially represented byassigned counsel, but asked for this attorney's removal shortly after his arraignment, stating thathe wished to obtain private representation. Retained counsel represented defendant at the nextseveral appearances and filed an omnibus motion on defendant's behalf. A dispute arose, and thisattorney moved to withdraw from the representation. Defendant consented to the withdrawal andthe court allowed time to obtain new representation. Defendant then informed the court that heintended to represent himself but wished to have cocounsel. The court advised that cocounselcould not be assigned and conducted an extensive discussion of the risks and disadvantages ofself-representation. Defendant then agreed to the assignment of new counsel, who representeddefendant at a subsequent Huntley/Wade/Mapp hearing. On the first day of that hearing,defendant's assigned counsel advised the court that he and defendant had "had a bit of abreakdown" in which defendant had threatened to spit in counsel's face after a disagreementabout a point of law. Upon the court's inquiry, defendant said that he wished to have this attorneycontinue to represent him during the remainder of the hearing to avoid delay. Counsel did so,and, at the close of the hearing, defendant again stated that he now wished to represent himself.The court again discussed the risks and disadvantages of self-representation with defendant,relieved his assigned counsel and then conducted a separate inquiry to address the knowing andintelligent character of defendant's request to represent himself. At the close of this inquiry, thecourt accepted defendant's decision.
Upon consideration of the record as a whole, including all of County Court's variousdiscussions of the subject (see People v Crampe, 17 NY3d 469, 482 [2011]; People vDashnaw, 116 AD3d at 1231), we are persuaded that the court's inquiry into the knowing andintelligent [*3]character of defendant's waiver was fully adequate.Among other things, the court advised defendant of the dangers of self-representation anddiscussed the differing roles of counsel and criminal defendants. This advice included severalimportant warnings: that it would be difficult to prepare for trial while incarcerated, thatdefendant might unknowingly do or say something that would be detrimental, that a trial was anevidentiary proceeding that involved matters in which defendant had little experience andrequired more than making a speech or an argument, that self-representation could be emotionaland subjective, while an attorney could provide objective professional guidance and advocacy,and that the same rules of evidence and decorum that applied to an attorney would apply todefendant. The court ascertained that defendant had previous experience in the criminal justicesystem, but had never previously represented himself, and that he had studied businessadministration in college and wished to represent himself because he did not trust the local publicdefenders. Further, defendant fully acknowledged his understanding that he would be held to thesame standards as an attorney and that he unequivocally wished to represent himself. We findthat County Court sufficiently "apprised defendant of the perils and pitfalls of proceeding pro se"and properly determined that he acted knowingly and intelligently in exercising his right toself-representation (People v Dashnaw, 116 AD3d at 1232; see People v Providence, 2 NY3d579, 583 [2004]; People v Vivenzio, 62 NY2d 775, 776 [1984]; People v Yu-Jen Chang, 92 AD3d1132, 1133-1134 [2012]).
In keeping with County Court's warnings about the risks of self-representation, many ofdefendant's appellate arguments are unpreserved; we shall nevertheless briefly address theirmerits in view of his pro se status at trial. The first unpreserved claim is defendant's assertion thatsome of the indictment counts were rendered duplicitous by the CIs' testimony about their historyof buying drugs from defendant (seePeople v Tomlinson, 53 AD3d 798, 799 [2008], lv denied 11 NY3d 835 [2008]).No modification would be warranted if this issue had been preserved, as the challenged countsclearly reference the dates on which the charged crimes took place, the CIs' testimony that theyknew defendant from earlier drug transactions was distinct from their testimony about thecharged crimes and, thus, there is no confusion as to the particular acts upon which the verdictwas based.
Defendant likewise failed to preserve claims related to evidentiary errors and acts ofprosecutorial misconduct, by either objecting to the testimony or requesting limiting instructions(see People v Byrd, 152 AD3d984, 988-989 [2017]; People vMarshall, 65 AD3d 710, 712 [2009], lv denied 13 NY3d 940 [2010]). He assertsthat he was deprived of a fair trial by the improper introduction of evidence of uncharged priordrug transactions, as the People had stated before trial that they had no Molineuxevidence, and that County Court erred in failing to analyze whether this evidence fit within anappropriate exception or was unduly prejudicial when balanced against its probative value (see e.g. People v Anthony, 152 AD3d1048, 1050-1051 [2017], lv denied 30 NY3d 978 [2017]). Had these alleged errorsbeen preserved, no modification would have been required. The challenged evidence providednecessary background information regarding how defendant became an investigation target, wasrelevant to defendant's identification and, with one exception, was not unduly prejudicial (see e.g. People v Stevens, 87 AD3d754, 756 [2011], lv denied 18 NY3d 861 [2011]; People v Sudler, 75 AD3d 901, 904-905 [2010], lv denied15 NY3d 956 [2010]). We agree with defendant that the probative value of one CI's testimonythat she had engaged in sexual intercourse with defendant in exchange for drugs, althoughrelevant to her ability to identify him, was outweighed by its potential prejudicial impact. Wefurther agree that County Court should have given limiting instructions in spite of defendant'sfailure to request them (see People vWard, 10 AD3d 805, 807 [2004], lv denied 4 NY3d 768 [2005]).
Nonetheless, the properly-admitted proof against defendant was overwhelming, [*4]including, among other things, the CIs' testimony and that of thelaw enforcement officers who monitored the transactions, searched his car and tested the drugs.The extensive physical evidence included the drugs that were the subject of the charged crimesand audio and video recordings of the controlled transactions. Defendant also made certainadmissions in the course of his summation regarding the presence of drugs in his car. Therefore,if defendant's claims had been properly preserved, we would have found the errors harmless (see People v Echavarria, 53 AD3d859, 863 [2008], lv denied 11 NY3d 832 [2008]; see generally People vCrimmins, 36 NY2d 230, 241-242 [1975]).
Defendant failed to object to certain statements during the prosecutor's summation that henow contends deprived him of a fair trial (see People v Wynn, 149 AD3d 1252, 1255-1256 [2017], lvdenied 29 NY3d 1136 [2017]). If these claims had been preserved, we would have found thatmost of the challenged remarks, when taken in context, were fair responses to defendant'ssummation or fair comments on the evidence (see People v Thomas, 155 AD3d 1120, 1123-1124 [2017]; People v Scippio, 144 AD3d 1184,1187 [2016], lv denied 28 NY3d 1150 [2017]). As for certain remarks that defendant nowcontends improperly vouched for the CIs' credibility, these comments were, at least in part,responsive to defendant's argument in summation that the charges against him were the result offorgeries and police corruption. While these remarks are troubling and would have been betterleft unsaid, they were not part of "a flagrant and pervasive pattern of prosecutorial misconduct,"and, in view of the previously-mentioned overwhelming proof supporting the CIs' account ofevents, we find no likelihood that the verdict would have been different if they had not beenmade (People v Green, 119 AD3d23, 30 [2014] [internal quotation marks and citations omitted], lv denied 23 NY3d1062 [2014]; see People v Wynn, 149 AD3d at 1256).
The assertions in defendant's pro se brief are unavailing. Defendant's challenge to the searchwarrant on the ground that the Aguilar-Spinelli test was not satisfied is without merit, asthe CIs were deposed in camera before the issuing magistrate, rendering that standardinapplicable (see People v Mendoza,5 AD3d 810, 812 [2004], lv denied 3 NY3d 644 [2004]; People v Walker,244 AD2d 796, 797 [1997]). Defendant did not object to the admissibility of certain drugevidence at trial (see People vPagan, 103 AD3d 978, 981 [2013], lv denied 21 NY3d 1018 [2013]; People v Wright, 38 AD3d 1004,1006 [2007], lv denied 9 NY3d 853 [2007]), and his underlying arguments about gaps inthe chain of custody—which he did raise during the trial—"go to the weight of theevidence, not its admissibility" (People vHawkins, 11 NY3d 484, 494 [2008]; accord People v Arce-Santiago, 154 AD3d 1172, 1173-1174[2017], lv denied 30 NY3d 1113 [2018]). Finally, defendant's arguments about allegedforgeries and evidence tampering by the police presented issues of credibility for the jury thatwere clearly resolved against him (seegenerally People v Criss, 151 AD3d 1275, 1279 [2017], lv denied 30 NY3d 979[2017]).
Devine, Mulvey and Aarons, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:Defendant's aggregate prisonterm consists of four consecutive terms that add up to 13 years, with two years of PRS on eachterm. These multiple periods of PRS merge by operation of law, such that defendant is subject toa total PRS term of only two years (see Penal Law § 70.45 [5] [c]). Asdefendant asserts, the uniform sentence and commitment form erroneously provides that the fourtwo-year PRS periods shall run consecutively. The People acknowledge that the correct totalperiod of PRS is two years, and County Court said nothing during sentencing to indicate acontrary intent. As this error is recognized, remittal for amendment of the form is unnecessary(see People v Chirse, 146 AD3d1031, 1033 [2017], lv denied 29 NY3d 947 [2017]; People v Dukes, 14 AD3d 732,733 [2005], lv denied 4 NY3d 885 [2005]; cf. People v Stocum, 143 AD3d 1160, 1163 [2016]).