| People v Spencer |
| 2019 NY Slip Op 01458 [169 AD3d 1268] |
| February 28, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Shaquan Spencer, Also Known as O, Appellant. |
Adam H. Van Buskirk, Auburn, for appellant, and appellant pro se.
Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey Kehm of counsel), for respondent.
Garry, P.J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.), renderedSeptember 28, 2016, upon a verdict convicting defendant of the crimes of criminal possession of acontrolled substance in the third degree (three counts) and conspiracy in the fourth degree.
In August 2015, police, who were searching for a missing person, entered an apartment,encountered defendant and found narcotics and a large amount of cash on his person, as well asadditional drugs in the apartment. Defendant was charged with criminal possession of a controlledsubstance in the third degree (three counts), conspiracy in the fourth degree and criminally using drugparaphernalia. After a jury trial, defendant was acquitted of criminally using drug paraphernalia andconvicted of the remaining charges. County Court sentenced him as a second felony offender to threeconcurrent prison terms of 10 years, followed by three years of postrelease supervision, on theconvictions for criminal possession of a controlled substance in the third degree and a concurrent termof 1
Defendant contends that his convictions are not supported by legally sufficient evidence and areagainst the weight of the evidence in that the People did not prove that he had the requisite intent to sellor that he engaged in a conspiracy. Defendant failed to preserve his legal sufficiency argument, as hisgeneral motion for a trial order of dismissal was not based on these specific claims (see People v Hawkins, 11 NY3d 484,492 [2008]; People v Miller, 160 AD3d1040, 1041 [2018], lv denied 32 NY3d 939 [2018]). "Nevertheless, our weight of theevidence review necessarily involves an evaluation of whether all elements of the charged crimes wereproven beyond a reasonable doubt" (People vNewell, 148 AD3d 1216, 1220 [2017] [internal quotation marks and citation omitted], lvdenied 29 NY3d 1035 [2017]; seePeople v Danielson, 9 NY3d 342, 348-349 [2007]).
The testimony of the People's witnesses established that, in August 2015, the City of PlattsburghPolice Department received a missing person report regarding Kamil Wideman, who was possibly inthe area and in danger. During the search for Wideman, police were told that he was staying in a localresident's apartment. Police located the resident, who told them that Wideman and defendant werestaying with her and were involved in narcotics activity, and consented to a search of her apartment.When the police arrived at the apartment, defendant was the only person there. As officers used a keyto enter and announced their presence, they heard a door close; defendant was found in the bathroomwith the door locked, and he flushed the toilet before exiting. A few minutes later, the police observedand photographed a white film on the water's surface.
When asked to identify himself, defendant initially provided a false name. Police directed him totake his hands out of the pockets of his sweat pants. He did so, but put one hand back into a pocketwhile an officer was trying to handcuff him. The officer removed defendant's hand, saw a large amountof cash in the pocket and pulled out the other pocket. Additional currency and two"bundles"—that is, plastic bags that each contained 10 smaller packages of what proved to beheroin—fell onto the floor. A total of $9,625 was found on defendant's person. Police searchedthe apartment, noticed an opening in the bottom of an ottoman and found two plastic bags hidden insideit containing cocaine and heroin.
The resident testified that, at the request of a certain friend, she had allowed that friend, defendantand Wideman to stay at her apartment for four days. The resident said that the three individuals broughtdrugs into her apartment and that she saw them preparing the drugs for sale. On the first morning oftheir stay, before the resident left for work, she saw the three men "getting all their stuff prepared for theday"—or, as she clarified, she saw defendant handing out supplies of heroin and cocaine toWideman and the friend. She saw similar activity on the next two mornings, as defendant and the others"prepar[ed] the drugs to go for the day." She testified that defendant normally kept the drugs on hisperson but that she also saw him "going under the [ottoman]" or "unzipping the futon." She also sawWideman and the friend giving money to defendant. On the day of defendant's arrest, which was thefourth morning of his stay in the resident's apartment, the resident saw defendant give drugs to thefriend. The resident then gave the friend and Wideman a ride to Plattsburgh, leaving defendant, whohad no other means of transportation, in the apartment. Before she returned to the apartment, theresident was stopped by police and provided the information that led to defendant's arrest.
The resident testified that she was a heroin addict and that defendant and Wideman had given herheroin and money in exchange for permitting them to stay in her apartment. She testified that she did nottouch the drugs that were stored in her apartment, that she never saw defendant use any drugs and thatthere were no needle tracks on his arms. She acknowledged that she was on parole from adrug-related conviction at that time and that she cooperated with police because she was afraid ofgetting into trouble. She further acknowledged that she later went back to prison for a violation of herparole.
During a videotaped police interview that was played for the jury, defendant admitted that hepossessed the drugs found on his person. Police obtained DNA from a soda bottle that defendantdrank from during the interview and provided it to a forensic analyst, who testified that it matched DNAon the packaging of the narcotics found in the ottoman. A detective and an agent with the DrugEnforcement Administration testified, based on their experience in narcotics investigations, that drugusers were not usually found with large quantities of drugs or cash and that the sum of money found ondefendant's person and the amount and packaging of the drugs found in the search were consistent withdrug sales and not with personal use.
If the jury had credited defendant's claim that the drugs were for personal use and that he did notintend to conspire with Wideman to sell them, a different verdict would not have been unreasonable (see People v Criss, 151 AD3d 1275,1276 [2017], lv denied 30 NY3d 979 [2017]). Thus, this Court "must, like the trier of factbelow, weigh the relative probative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony" (People v Bleakley, 69 NY2d 490, 495[1987] [internal quotation marks and citations omitted]). Viewing the evidence in a neutral light anddeferring to the jury's credibility assessments, we find that the weight of the evidence supports theverdict (see People v Harvey, 96 AD3d1098, 1100 [2012], lv denied 20 NY3d 933 [2012]; People v James, 90 AD3d 1249, 1250 [2011], lv denied 18NY3d 958 [2012]).
We reject defendant's contention that County Court erred in summarily rejecting his motion tosuppress physical evidence. Such a motion must be made within 45 days of the commencement of acriminal action, unless the defendant shows good cause for the delay (see CPL 255.20 [1], [3];710.40). Defendant's motion was made more than six months after he was arraigned and included noclaim or showing of good cause for the delay. Moreover, defense counsel had previously filed a timelyomnibus motion seeking other relief. The information upon which the belated suppression motion wasbased was available when the omnibus motion was filed, and the suppression motion did notdemonstrate that "defendant did not have reasonable opportunity to make the motion previously" (CPL710.40 [2]). Thus, summary denial was proper (see CPL 255.20 [3]; People v Jackson, 48 AD3d 891, 893[2008], lv denied 10 NY3d 841 [2008]; People v Knowles, 12 AD3d 939, 940 [2004]).
We further reject defendant's contention that his trial counsel was ineffective in failing to make atimely suppression motion. "[A] showing that counsel failed to make a particular pretrial motiongenerally does not, by itself, establish ineffective assistance of counsel" (People v Rivera, 71NY2d 705, 709 [1988]). Moreover, ineffective assistance does not result from "failure to make amotion or argument that has little or no chance of success" (People v Caban, 5 NY3d 143, 152 [2005] [internal quotation marks andcitation omitted]). Our review of the trial evidence reveals that it is unlikely that a suppression motion, ifmade, would have been successful (seePeople v Garcia, 30 AD3d 833, 835 [2006]; compare People v Carnevale, 101 AD3d 1375, 1378-1381[2012]).
Defense counsel did present a timely omnibus motion, and County Court scheduledHuntley, Dunaway and Wade hearings. On the scheduled date, defense counseladvised that defendant wished to waive the hearings in exchange for the People's agreement to hold aplea offer open for an additional two weeks. Defense counsel clarified that defendant had made thisdecision after discussions regarding the likely result of the pretrial hearings and the strength of thePeople's DNA evidence against him. The court accepted the waiver after defendant confirmed on therecord that he wished to waive the hearings in exchange for additional time to consider the plea offer,that he had consulted with counsel, and that he understood the rights that he was giving up. Thus,defendant's claim that his trial counsel erred in advising him to consent to the waiver is a "simpledisagreement with strategies and tactics" that does not constitute the ineffective assistance of counsel(People v Rivera, 71 NY2d at 708-709; accord People v Hare, 124 AD3d 1148, 1148-1149 [2015], lvdenied 26 NY3d 929 [2015]). Viewing the law, the evidence and the circumstances in totality, wefind that trial counsel provided defendant with "meaningful representation" (People v Baldi, 54NY2d 137, 147 [1981]).
Contrary to defendant's claim, County Court did not improperly permit the People to amend theirtheory of the case. During jury deliberations, the jury sent a note asking for clarification of the phrase"acting in concert," which appeared on the verdict sheet as part of each of the three charges of criminalpossession of a controlled substance in the third degree. The court determined, in discussion withcounsel, that the language had been included on the verdict sheet in error, as whether a defendant actsin concert with another is not an element of the crime of criminal possession of a controlled substance inthe third degree. Defendant argued that the corresponding indictment charges alleged that defendanthad acted in concert with Wideman and that removal of the language from the verdict sheet would alterthe People's theory of the case, while the People asserted that they had not proceeded under a theoryof accomplice liability. Over defendant's objection, the court instructed the jury to ignore the "inconcert" language in determining defendant's guilt on the criminal possession charges.
"Whether a defendant is charged as a principal or as an accomplice to a crime has no bearing onthe theory of the prosecution," as there is no legal distinction between criminal liability as a principal oras an accessory (People v Rivera, 84 NY2d 766, 769 [1995]). Thus, when an indictmentcharges that a defendant acted in concert with another, the People may offer proof of either statuswithout expanding or altering their theory of liability (see People v Pierce, 106 AD3d 1198, 1201 n 2 [2013]). Accordingly,County Court did not err in instructing the jury to disregard the language in the verdict sheet pertainingto whether defendant acted in concert with another in determining his liability on the charges of criminalpossession of a controlled substance in the third degree (see People v Mateo, 2 NY3d 383,408-409 [2004]; People v Rivera, 84 NY2d at 769; People v Kowal, 159 AD3d 1346, 1347 [2018]; People v Charles, 124 AD3d 986, 988[2015], lv denied 25 NY3d 950 [2015]).
Finally, we reject defendant's claim that his sentence is harsh and excessive. In view of his criminalhistory, which includes prior out-of-state convictions for felonies related to the sale and distribution ofdrugs, as well as other offenses such as identity theft and grand larceny, we perceive no abuse ofdiscretion or extraordinary circumstances warranting modification of the sentence in the interest ofjustice (see People v Arce-Santiago, 154AD3d 1172, 1175 [2017], lv denied 30 NY3d 1113 [2018]; People v Hawkins, 130 AD3d 1298,1305 [2015], lv denied 26 NY3d 968 [2015]).
Egan Jr., Lynch, Clark and Pritzker, JJ., concur. Ordered that the judgment is affirmed.