| People v Douglas |
| 2018 NY Slip Op 04388 [162 AD3d 1212] |
| June 14, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Keith Douglas, Appellant. |
Mitchell S. Kessler, Cohoes, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.
Garry, P.J. Appeals (1) from a judgment of the Supreme Court (Breslin, J.), rendered January9, 2015 in Albany County, upon a verdict convicting defendant of the crimes of criminalpossession of a controlled substance in the third degree (three counts), criminal possession of acontrolled substance in the fourth degree, criminally using drug paraphernalia in the seconddegree (two counts), criminal sale of a controlled substance in the third degree (two counts) andcriminal possession of marihuana in the fifth degree, and (2) by permission, from an order of saidcourt, entered August 28, 2015 in Albany County, which denied defendant's motion pursuant toCPL 440.10 to vacate the judgment of conviction, without a hearing.
A confidential informant (hereinafter CI) made two controlled purchases of crack cocainefrom defendant on separate dates in October 2013. Thereafter, police officers searched hisapartment pursuant to a warrant. Defendant was indicted in November 2013 on various chargesarising out of the execution of the warrant. Supreme Court denied his motion to suppressevidence based upon alleged deficiencies in the warrant application.
In April 2014, defendant was indicted on several charges arising out of the two controlledpurchases. Supreme Court granted the People's motion to consolidate the indictments and, after itbecame apparent that defendant's assigned counsel had previously represented the CI, appointednew counsel for defendant. Following a jury trial, defendant was convicted of criminalpossession of a controlled substance in the third degree (three counts), criminal possession of acontrolled substance in the fourth degree, criminally using drug paraphernalia in the second [*2]degree (two counts), criminal sale of a controlled substance in thethird degree (two counts), and criminal possession of marihuana in the fifth degree. He wassentenced as a second felony offender to an aggregate prison term of 28 years. Following hissentencing, defendant, pro se, moved pursuant to CPL 440.10 to set aside the judgment ofconviction. The court denied the motion without a hearing. Defendant appeals from the judgmentof conviction and, by permission, from the denial of his CPL 440.10 motion.
We reject defendant's argument that the search warrant application and the warrant werefatally defective on the ground that neither document provided the printed name of the issuingmagistrate. Contrary to defendant's assertion, the requirements of CPLR 2101 (a) are notcontrolling here. Although 22 NYCRR 200.3 generally requires "paper[s] filed in [criminal]court" to comply with that provision, the specific requirements for search warrants and warrantapplications are set forth in CPL 690.35 and 690.45 (see e.g. People v Gavazzi, 20 NY3d 907, 908-909 [2012];People v Zimmer, 112 AD2d 500, 501 [1985]; see generally People v Lamont, 144 AD3d 1330, 1331 [2016],lv denied 28 NY3d 1185 [2017]; People v Crisp, 268 AD2d 247, 247 [2000],lv denied 94 NY2d 946 [2000]). Neither CPL provision requires the inclusion of theissuing magistrate's printed name. Here, the warrant application complies with the statutoryrequirements; we note that it includes the name of the issuing court, the name and title of thepolice officer who made the application, and the officer's sworn signature (see CPL690.35 [1], [3] [a]). The warrant is headed with the name of the issuing court, and the issuingmagistrate is identified, in a line below the signature, as a "[j]ustice" of the same issuing court(see CPL 690.45 [1]; compare People v Gavazzi, 20 NY3d at 909). Accordingly,Supreme Court properly denied defendant's suppression motion.
Defendant next contends that reversal is required because Supreme Court denied hischallenge for cause to a prospective juror who was related to one of the trial witnesses. Whenasked about the relationship, the juror explained that the witness was his cousin; later, insomewhat unclear testimony, he appeared to indicate that the witness was his secondcousin.[FN1] Defensecounsel made a challenge for cause on the basis of this family relationship, and also based uponthe testimony that the juror and the witness had a social relationship. Supreme Court denied thechallenge, noting that the juror had stated that he could treat the testimony of the witness fairlydespite the relationship. However, this determination applied the incorrect standard.
As pertinent here, CPL 270.20 (1) (c) provides that a prospective juror may be challenged forcause if he or she has a relationship "within the sixth degree by consanguinity . . . toa prospective witness at the trial." Such a relationship, like the others set forth in CPL 270.20 (1)(c), establishes an "implied bias," which "requires automatic exclusion from jury serviceregardless of whether the prospective juror declares that the relationship will not affect [his or]her ability to be fair and impartial" (People v Furey, 18 NY3d 284, 287 [2011]; accord People v Bedard, 132 AD3d1070, 1070-1071 [2015]; see Peoplev Powell, 153 AD3d 1034, 1037 [2017]; People v Wlasiuk, 90 AD3d 1405, 1412 [2011]). The juror'srelationship with the witness fell within the sixth degree of consanguinity whether the witnesswas his first or second cousin (seePeople v Walters, 12 AD3d 953, 954 [2004]; Matter of von Knapitsch, 296AD2d 144, 147-148 [2002]; People v Clark, 16 NYS 473, 474 [Sup Ct, Gen Term, 3dDept 1891]; 38 NY Jur 2d, Decedents' Estates §§ 111, 112). Accordingly, weagree with defendant that his challenge for [*3]cause should havebeen granted.
Nonetheless, we reject defendant's claim that reversal is required on the ground that he used aperemptory challenge to dismiss the juror and thereafter exhausted his remaining peremptorychallenges (see e.g. People v Lynch, 95 NY2d 243, 248 [2000]). Instead, the recordreveals that the error was cured when Supreme Court subsequently granted him an additionalperemptory challenge. The court thus put defendant in the same position that would have resultedif the challenge for cause had been granted (see People v Donahue, 81 AD3d 1348, 1349 [2011], lvdenied 16 NY3d 894 [2011]; Peoplev Miles, 55 AD3d 955, 955 [2008], lv denied 11 NY3d 928 [2009]; People vApolinar, 208 AD2d 548, 550 [1994], lv denied 84 NY2d 1028 [1995]; see alsoPeople v Wales, 138 AD2d 766, 768 [1988], lv denied 72 NY2d 868[1988]).[FN2]
We reject defendant's claim that Supreme Court erred in denying his request for a missingwitness instruction pertaining to a female officer who searched the CI before the controlledpurchases. Such a charge "allows a jury to draw an unfavorable inference based on a party'sfailure to call a witness who would normally be expected to support that party's version ofevents" (People v Savinon, 100 NY2d 192, 196 [2003]; accord People v Onyia, 70 AD3d1202, 1204 [2010]). Here, defendant did not meet his burden of establishing one of the threenecessary conditions for the requested charge, that is, to demonstrate that the witness would beexpected to give noncumulative testimony (see People v Savinon, 100 NY2d at 197; People v Brown, 139 AD3d 1178,1179 [2016]; People v Turner, 73AD3d 1282, 1284 [2010], lv denied 15 NY3d 896 [2010]). Taken together, thetestimony of the two detectives who conducted the controlled transactions—both of whomwere male—established that the female CI was searched at the police station before eachpurchase by a female "matron" to make sure that she was not carrying any contraband, searchedagain by one of the detectives in the police vehicle just before each transaction, and searched athird time by the same detective immediately afterward. They described the search procedure thatthe detective employed and the more thorough procedure that the female matron could use ifnecessary. They further stated that the CI had participated in "dozens" of previous transactionsand had never been found to be hiding contraband. The CI testified consistently with thedetectives, stating that she was searched by a "matron" before each purchase and then by one ofthe detectives before and after the transaction. Although defendant now contends that the CI'stestimony did not clearly establish the extent of the female officer's search and, thus, whether theCI could have been carrying undetected drugs, the CI testified that she did not have anycontraband. Defense counsel did not challenge her credibility on this point, and did not seek toobtain more details about the search during cross-examination. In view of "the consistent anduncontradicted testimony" of the detectives and the CI, defendant failed to demonstrate that thefemale officer's testimony would have been noncumulative, and, thus, Supreme Court did notabuse its discretion in denying his request (People v Turner, 73 AD3d at 1284; see People v Edwards, 14 NY3d733, 735 [2010]; People vCummings, 157 AD3d 982, 987 [2018], lv denied 31 NY3d 982 [2018]; People v Jackson, 151 AD3d 1466,1469 [2017], lv denied 30 NY3d 950 [2017]).
Defendant's claim that his sentence was imposed in retaliation for his choice to reject aproposed plea agreement and to exercise his right to trial is unpreserved (see People vHurley, 75 NY2d 887, 888 [1990]; People v Martinez, 144 AD3d 1326, 1326 [2016], lv denied28 NY3d [*4]1186 [2017]). In any event, the mere fact thatdefendant's aggregate prison sentence was greater than those offered in two pretrial plea offersthat he rejected "is not proof that defendant was penalized for exercising his right to a jury trial"(People v Robinson, 72 AD3d1277, 1278 [2010], lv denied 15 NY3d 809 [2010]; accord People v Young, 86 AD3d796, 800 [2011], lv denied 17 NY3d 905 [2011]). Notably, the sentences thatdefendant were offered before trial contemplated guilty pleas to only one felony, while hisultimate sentence arose from his convictions for multiple felonies and misdemeanors. As for theclaim that the sentence is harsh and excessive, upon consideration of defendant's extensivecriminal history and failure to express remorse, we find no extraordinary circumstances or abuseof discretion warranting a modification (see People v Lee, 129 AD3d 1295, 1300 [2015], lv denied27 NY3d 1001 [2016]; People vSudler, 75 AD3d 901, 906 [2010], lv denied 15 NY3d 956 [2010]).
Supreme Court did not err in denying defendant's CPL 440.10 motion without a hearing, asthe allegations raised therein were based upon information in the record and, thus, werereviewable on direct appeal (see CPL 440.10 [2] [b]). Defendant now contends that oneof these claims—that the People committed prosecutorial misconduct by failing todisclose the conflict of interest created by the CI's representation by the same counsel whooriginally represented defendant—depends on evidence outside the record as to when thePeople learned of the conflict or when knowledge of the conflict could be imputed to them.However, this argument disregards the fact that the first indictment did not arise from thecontrolled transactions involving the CI. Thus, no conflict existed until the first indictment wasconsolidated with the second indictment, from which the conflict of interest arose. The recordreveals that the consolidation took place in May 2014, and that new counsel was assigned fordefendant later that same month. Defendant makes no claim that he received ineffectiveassistance of counsel as a result of the conflict during this brief period, and, as his defense couldnot have been harmed by a conflict that did not exist, any information about the period before theconsolidation would be irrelevant. Thus, the motion was properly denied (see People v Herbert, 147 AD3d1208, 1210-1211 [2017]; People vJones, 101 AD3d 1482, 1483 [2012], lv denied 21 NY3d 1017 [2013]; People v Vallee, 97 AD3d 972,974 [2012], lv denied 20 NY3d 1104 [2013]).
Defendant's remaining contentions, including those raised in his pro se submission, havebeen examined and found to be lacking in merit.
Egan Jr., Clark, Mulvey and Rumsey, JJ., concur. Ordered that the judgment and order areaffirmed.
Footnote 1:The juror used the term "second"while describing his relationship with two cousins, and it was unclear whether he was referring tothe cousin who was the witness.
Footnote 2:Contrary to the People's claim,the record clearly establishes that defendant exercised all of his peremptory challenges. Also,contrary to defendant's claim, it is clear that defendant exercised the additional peremptorychallenge.