| People v Thomas |
| 2019 NY Slip Op 01454 [169 AD3d 1255] |
| February 28, 2019 |
| Appellate Division, Third Department |
[*1](February 28, 2019)
| The People of the State of New York,Respondent, v Derrick Thomas, Also Known as Tracey Mendez,Appellant. |
Noreen McCarthy, Keene Valley, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Devine, J. Appeal from a judgment of the Supreme Court (Ceresia, J.), rendered August 13, 2015in Albany County, upon a verdict convicting defendant of the crimes of criminal sale of a controlledsubstance in the third degree (two counts) and criminal possession of a controlled substance in theseventh degree.
Defendant was charged in an indictment with crimes related to, as is relevant here, his sale ofcocaine to a confidential informant (hereinafter CI) on two occasions and his possession of cocaine atthe time of his arrest. The case proceeded to a trial at which the jury convicted defendant of criminalsale of a controlled substance in the third degree (two counts) and criminal possession of a controlledsubstance in the seventh degree. Defendant made statements at the initial sentencing date that, whencoupled with concerns raised in the presentence investigation report about his mental health, promptedSupreme Court to order an assessment of his competency to proceed (see CPL 730.30 [1]).The examining psychologists found that defendant was an "incapacitated person" (CPL 730.50 [1];see CPL 730.30 [3]). Supreme Court rejected the ensuing motion by defendant to set aside theverdict on the ground that those reports pointed to his incapacity at the time of trial, then ordered himcommitted to the custody of the Commissioner of Mental Health for care and treatment (seeCPL 730.50 [1]). Several weeks later, he was found fit to proceed and returned for sentencing(see CPL 730.60 [2]). Supreme Court thereafter sentenced defendant to an aggregate prisonterm of eight years on the two sale convictions, to be followed by postrelease supervision of two years,with a lesser concurrent term on the remaining conviction. Defendant now appeals.
Defendant asserts that the verdict was not supported by legally sufficient proof and, as to the twosales for which he was convicted, moved for a trial order of dismissal upon the ground that the Peoplefailed to establish his identity as the seller. The trial evidence on that point included the CI's testimony asto how she arranged the sales with defendant and what transpired during them, the testimony ofinvestigators who surveilled the scene, recovered what proved to be cocaine from the CI immediatelyafter the sales and tailed defendant to and from his residence, and other audio and photographicevidence. Contrary to defendant's contention, the foregoing constituted legally sufficient proof fromwhich the jury could find that he was the seller on both occasions (see People v Nicholas, 130 AD3d 1314, 1314-1316 [2015]; People v Lee, 129 AD3d 1295,1296-1297 [2015], lv denied 27 NY3d 1001 [2016]). Defendant's challenges to the legalsufficiency of the proof underlying other elements of the charged sales were not advanced via specificobjection in his motion for a trial order of dismissal and, as a consequence, are unpreserved for ourreview (see People v Hawkins, 11 NY3d484, 492 [2008]; People v Junior,119 AD3d 1228, 1229 [2014], lv denied 24 NY3d 1044 [2014]).
Next, the failure to accommodate defendant's alleged hearing problem did not deprive him of hisright to be present and participate at material stages of trial (see US Const 6th, 14th Amends;NY Const, art I, § 6; CPL 260.20; United States v Crandall, 748 F3d 476, 481[2d Cir 2014]; see also Judiciary Law § 390). To the extent that this issue ispreserved despite defendant's failure to request an accommodation while physically present (seePeople v Robles, 86 NY2d 763, 765 [1995]; People v Diallo, 132 AD3d 1010, 1010 [2015], lv denied 27NY3d 1150 [2016]), Supreme Court adequately addressed the isolated occasions where defendantindicated that he had not heard what was said and "there was no obvious impairment necessitating theprovision by the court, sua sponte, of" further assistance (People v Phillips, 265 AD2d237, 237 [1999], lv denied 94 NY2d 906 [2000]; see People v Warcha, 17 AD3d 491, 492 [2005], lv denied 5NY3d 771 [2005]).
Defendant's similar claim, that Supreme Court should have done more to investigate hiscompetency at trial after his postverdict behavior raised concerns about his mental state, is alsounavailing. "[A] defendant is presumed to be competent, and the law 'is well settled that a defendant isnot entitled, as a matter of right, to have the question of his [or her] capacity to stand trial passed uponbefore the commencement of the trial, if the court is satisfied from the available information that there isno proper basis for questioning the defendant's sanity' " (People v Tortorici, 92 NY2d757, 765 [1999] [citation omitted], cert denied 528 US 834 [1999], quoting People vArmlin, 37 NY2d 167, 171 [1975]; seePeople v Kot, 126 AD3d 1022, 1024 [2015], lv denied 25 NY3d 1203 [2015]). Therecord contains no reason to doubt defendant's meaningful participation in the trial proceedings and, onthe one pretrial occasion when he seemed "slow to comprehend" what was said to him, appropriateaction was taken (People v Charlton, 192 AD2d 757, 759 [1993], lv denied 81 NY2d1071 [1993]; see People v Perez, 44AD3d 491, 491 [2007], lv denied 9 NY3d 1037 [2008]). Defendant later moved to setaside the verdict on competency grounds, but the motion papers did nothing to rebut the presumptionthat he was competent at trial. To the contrary, the motion papers included representations by defensecounsel that they had no contemporaneous concerns about defendant's ability to understand andparticipate in the proceedings, and Supreme Court noted in denying the motion that defendant hadconsistently "interacted with and responded to [it] in an appropriate and intelligent manner" (seePeople v Tortorici, 92 NY2d at 766-767). Moreover, the duration and degree of defendant'smental impairment was open to question, as he was declared fit for sentencing several weeks after theorder of commitment was issued. Under these circumstances, although Supreme Court was right toinvoke CPL article 730 when questions arose as to defendant's mental state following trial (seePeople v Bangert, 22 NY2d 799, 800 [1968]), it did not abuse its discretion in declining to, uponits own initiative, retroactively investigate whether defendant was competent at the trial itself (seePeople v Gelikkaya, 84 NY2d 456, 459-460 [1994]; People v Bilal, 79 AD3d 900, 901-902 [2010], lv denied 16NY3d 856 [2011]; People v Johnson, 52AD3d 1040, 1042 [2008], lv denied 11 NY3d 833 [2008]; People v Graham,272 AD2d 479, 479-480 [2000], lv denied 95 NY2d 865 [2000]).
Lastly, defendant was not denied the effective assistance of counsel. With regard to defendant'spurported hearing impairment and mental incapacity, the record does not reflect that either impacteddefendant's ability to participate at trial or his eventual sentencing, and defendant does not show thatcounsel's failure to more vigorously pursue those issues "lacked a legitimate reason or constitutedineffective assistance" (People v Wojes, 306 AD2d 754, 755 [2003], lv denied 100NY2d 600 [2003]; see People v Gomez,67 AD3d 927, 928 [2009]; People vBorom, 55 AD3d 1041, 1042 [2008]). Likewise, there was an obvious strategy behinddefense counsel's decision to allow into evidence the laboratory reports identifying the substances soldto the CI as cocaine, as any dispute on that point would only distract from "the theory of [the] defense,i.e., that [defendant] took no part in the" sales to begin with (People v Alexander, 255 AD2d708, 709 [1998], lv denied 93 NY2d 897 [1999]; see People v Jones, 101 AD3d 1241, 1243 [2012], lv denied 21NY3d 944 [2013]). The remaining instances of supposedly ineffective assistance cited by defendantare not persuasive, and our review of "the evidence, the law, and the circumstances of [this] case,viewed in totality and as of the time of the representation, reveal that" he received "meaningfulrepresentation" (People v Baldi, 54 NY2d 137, 147 [1981]; see People v Honghirun, 29 NY3d 284,289 [2017]).
Egan Jr., J.P., Clark, Mulvey and Rumsey, JJ., concur. Ordered that the judgment is affirmed.