| People v Linder |
| 2019 NY Slip Op 01965 [170 AD3d 1555] |
| March 15, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Anquawn Linder, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Nathaniel V. Riley of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Nicole K. Intschert of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedSeptember 29, 2015. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a controlled substance in the third degree.
It is hereby ordered that said appeal from the judgment insofar as it imposed sentence isunanimously dismissed and the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofcriminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [12]). The conviction arises out of a police-executed traffic stop duringwhich defendant handed a bag containing a "softball"-sized amount of crack cocaine to anaccomplice, who then secreted the contraband between his buttocks. We now affirm.
Defendant first challenges the legal sufficiency and weight of the evidence underlying hisconviction, arguing that the accomplice's testimony was insufficiently corroborated and that thePeople therefore failed to establish that defendant possessed the drugs recovered from theaccomplice's buttocks. At trial, the accomplice testified that defendant possessed the drugs on hisperson before the traffic stop and that, shortly after the car was pulled over, defendant used hisright arm to pass the bag of drugs to the accomplice. The accomplice testified that he thenimmediately stuffed the bag of drugs between his buttocks to avoid detection. The accomplice'stestimony was corroborated by the testimony of a police officer who witnessed defendant reachover toward the accomplice with his right hand and who, seconds later, saw the accomplice'shand emerge from the back of his pants.
Contrary to defendant's contention, the officer's testimony satisfies the corroborationrequirement of CPL 60.22 because it " 'tends to connect . . . defendant withthe commission of the crime in such a way as may reasonably satisfy the jury that the accompliceis telling the truth' " (People vReome, 15 NY3d 188, 192 [2010]; see People v Davis, 28 NY3d 294, 303[2016]; People v Philbert, 270 AD2d 210, 210 [1st Dept 2000], lv denied 95NY2d 856 [2000]; see also People vYoung, 48 AD3d 901, 903 [3d Dept 2008]; People v Arrington, 31 AD3d 801, 803 [3d Dept 2006], lvdenied 7 NY3d 865 [2006]; cf.People v Johnson, 1 AD3d 891, 892-893 [4th Dept 2003]). Notably, " '[t]he roleof the additional evidence is only to connect the defendant with the commission of the crime, notto prove that he committed it' " (Reome, 15 NY3d at 192). We thus conclude thatthere is legally sufficient evidence to establish defendant's possession of the subject cocaine(see generally People v Bleakley, 69 NY2d 490, 495 [1987]; People v Nichols, 163 AD3d 39,49 [4th Dept 2018]). Moreover, upon our independent review of the evidence in light of theelements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we have noreasonable doubt that defendant possessed the drugs at issue (see e.g. People v La Porte,217 AD2d 821, 821-822 [3d Dept 1995]). As such, the verdict is not against the weight of theevidence (see generally People vSanchez, 32 NY3d 1021, 1023 [2018]; People v Kancharla, 23 NY3d 294, 302-303 [2014]).
Defendant next contends that the superceding indictment should be dismissed because thePeople violated his right to testify at the superceding grand jury presentation (see generallyCPL 190.50 [5]). Defendant waived that contention, however, "by failing to move to dismissthe [superceding] indictment on that ground within five days after he was arraigned" (People v Roach, 1 AD3d 963, 964[4th Dept 2003] [emphasis added], lv denied 1 NY3d 579 [2003], denied uponreconsideration 1 NY3d 633 [2004], cert denied 543 US 853 [2004]; see CPL190.50 [5] [c]; People v Osborne, 88AD3d 1284, 1286 [4th Dept 2011], lv denied 19 NY3d 999 [2012], deniedreconsideration 19 NY3d 1104 [2012]).
In any event, the record establishes that defendant's right to testify was not violated. Aperson's right to testify before the grand jury on his or her own behalf is explicitly conditionedupon serving the "district attorney" with a "written notice" of intent to testify (CPL 190.50 [5][a]). "The requirements of CPL 190.50 are to be strictly enforced" (People v Kirk, 96 AD3d 1354,1359 [4th Dept 2012], lv denied 20 NY3d 1012 [2013] [internal quotation marksomitted]; see People v Lawrence, 64 NY2d 200, 206-207 [1984]). Here, althoughdefendant sent a letter to the trial judge asking to testify before the grand jury and later orallyreiterated that desire in open court, it is undisputed that defendant never "serve[d] upon thedistrict attorney . . . a written notice" of his intent to testify asrequired by CPL 190.50 (5) (a) (emphasis added). Defendant thus failed to effectively invoke hisstatutory right to testify before the grand jury (see People v Saldana, 161 AD2d 441, 444[1st Dept 1990], lv denied 76 NY2d 944 [1990]). "In the absence of an effective requestto testify, the People were entitled to resubmit the charges without notice to defendant" andwithout affording him an opportunity to testify (People v Nix, 265 AD2d 891, 891 [4thDept 1999]; cf. People v Greco, 230 AD2d 23, 27-28 [4th Dept 1997], lv denied90 NY2d 858 [1997], denied upon reconsideration 90 NY2d 940 [1997]). Contrary todefendant's assertion, the People were not obligated to preemptively notify him of thesuperceding grand jury proceeding because, at that time, there was no "currently undisposed offelony complaint charging an offense which is a subject of the prospective or pending[superceding] grand jury proceeding" (CPL 190.50 [5] [a]; see People v Lunney, 84 Misc2d 1090, 1095-1096 [Sup Ct, NY County 1975]; see also People v Washington, 42 AD2d677, 677 [4th Dept 1973]; see generally People v Franco, 86 NY2d 493, 499-500 [1995]).There was thus no basis to dismiss the superceding indictment pursuant to CPL 190.50 (5)(see People v Ponce, 276 AD2d 921, 921-922 [3d Dept 2000], lv denied 96 NY2d786 [2001]).
Defendant next contends that the prosecutor committed a Batson violation byperemptorily striking prospective juror 17, a black female. The prosecutor offered threeundisputedly race-neutral reasons for striking the subject venireperson: (1) she was "not veryforthcoming in her answers"; (2) she was "kind of quiet"; and (3) she was employed as a nursingassistant. County Court rejected defendant's Batson challenge, finding that theprosecutor's rationale for striking the subject venireperson was not pretextual. Initially, by failingto controvert the first and third race-neutral reasons offered by the prosecutor, defendant's claimsof pretext as to those reasons are unpreserved for appellate review (see People v Rubin, 143 AD3d846, 846 [2d Dept 2016], lv denied 28 NY3d 1126 [2016]; People v Knowles, 79 AD3d 16,21 [3d Dept 2010], lv denied 16 NY3d 896 [2011]; People v Holloway, 71 AD3d 1486, 1486-1487 [4th Dept 2010],lv denied 15 NY3d 774 [2010]).
In any event, a "trial court's determination whether a proffered race-neutral reason ispretextual is accorded 'great deference' on appeal" (People v Hecker, 15 NY3d 625, 656 [2010]), and we see no reasonto disturb the court's determination that the prosecutor's explanations in this case were notpretextual (see e.g. People vEnglish, 119 AD3d 706, 706 [2d Dept 2014], lv denied 24 NY3d 1043 [2014];Holloway, 71 AD3d at 1486-1487). Defendant's insistence that the prosecutor wasobligated to link the venireperson's occupation with an "issue in the case" reflects a fundamentalmisapprehension of the Batson framework; indeed, it is well established that prosecutorsare "not required to 'show that the peremptory challenge was specifically related to thefacts of the case' " (Hecker, 15 NY3d at 664 [emphasis added]; see People v Toliver, 102 AD3d411, 411 [1st Dept 2013], lv denied 21 NY3d 1011 [2013], deniedreconsideration 21 NY3d 1077 [2013]). Nor need the prosecutor's race-neutral reasons" 'rise to the level of a challenge for cause' " in order to survive Batson'sstep-three inquiry into pretextuality (People v James, 99 NY2d 264, 270 [2002], quotingPeople v Allen, 86 NY2d 101, 106 [1995]), and "there is no authority [holding] that aproffered race-neutral reason for seeking the peremptory strike of a prospective juror, whileactually non-pretextual, was so insignificant as to be the equivalent of pretext" (People vSprague, 280 AD2d 954, 955 [4th Dept 2001]). The court therefore properly denieddefendant's Batson challenge.
Defendant next contends that defense counsel rendered ineffective assistance at trial. First,defendant faults his attorney for failing to request a missing witness charge for a confidentialinformant who allegedly set up the drug deal to which defendant and the accomplice were drivingwhen they were stopped by police. We reject that contention. Had defense counsel sought such acharge, the prosecutor might have responded by moving to reopen his case in order to call theinformant to the stand (see e.g. People v Miller, 259 AD2d 1031, 1031 [4th Dept 1999],lv denied 93 NY2d 927 [1999]; People v Parilla, 158 AD2d 556, 557 [2d Dept1990]). Such testimony could have undermined defendant's case and might have even resulted inhis conviction on certain counts of which he was acquitted. We thus perceive a valid strategicbasis for counsel's failure to request a missing witness instruction (see People v Peake, 14 AD3d 936,937-938 [3d Dept 2005]; People v Cruz, 165 AD2d 205, 207-208 [1st Dept 1991], lvdenied 77 NY2d 959 [1991]; cf.People v Davydov, 144 AD3d 1170, 1173 [2d Dept 2016], lv denied 29 NY3d996 [2017]; see generally People v Rivera, 71 NY2d 705, 709 [1988]). Moreover, anytestimony by the informant would have pertained only to the counts upon which defendant wasacquitted. Thus, defendant suffered no prejudice from the absence of a missing witnessinstruction under these circumstances (see People v Spallone, 150 AD3d 556, 557 [1st Dept 2017], lvdenied 29 NY3d 1134 [2017]; People v Neil, 289 AD2d 611, 613 [3d Dept 2001],lv denied 97 NY2d 758 [2002]).
Defendant's second claim of ineffectiveness centers on defense counsel's failure to exploitwhat defendant characterizes as a discrepancy between the police officer's trial testimony andsuppression hearing testimony. At trial, the officer testified that, while questioning theaccomplice, he told the accomplice that he had seen defendant give the accomplice the bag ofdrugs during the traffic stop. At the suppression hearing, the officer testified that he had notactually seen what, if anything, defendant handed the accomplice during the stop. There isnothing contradictory about these respective accounts, however. The officer never claimed at trialto have actually seen what, if anything, defendant handed to the accomplice; rather, the officermerely testified to using an interrogatory ruse with the accomplice in order to secure aconfession. Thus, the officer's trial testimony about the interrogatory ruse was not inconsistentwith his suppression hearing testimony about his actual observations during the stop. "Since thepurported inconsistency was illusory, trial counsel was not deficient in failing to exploit it oncross-examination" (People vLewis, 139 AD3d 571, 572 [1st Dept 2016], lv denied 28 NY3d 932 [2016],denied reconsideration 28 NY3d 1029 [2016]; see People v Casey, 149 AD3d 771, 772 [2d Dept 2017], lvdenied 29 NY3d 1077 [2017]).
Third, defendant argues that defense counsel was ineffective for failing to challenge twoalleged instances of prosecutorial misconduct. Again, we reject that contention. With respect tothe first alleged instance of prosecutorial misconduct, it is well established that a "defendant isnot denied effective assistance of trial counsel merely because counsel does not make a motion orargument that has little or no chance of success" (People v Stultz, 2 NY3d 277, 287 [2004], rearg denied 3NY3d 702 [2004]), and here, any challenge to the evidence of, or to the prosecutor's summationreferences to, the multiple cell phones discovered during the traffic stop would have beenunavailing (see e.g. People vCartagena, 9 AD3d 468, 468 [2d Dept 2004], lv denied 3 NY3d 672 [2004];People v Grajales, 294 AD2d 657, 658 [3d Dept 2002], lv denied 98 NY2d 697[2002]; see also People v Porter,153 AD3d 857, 857 [2d Dept 2017], lv denied 30 NY3d 1022 [2017]). With respectto the second alleged instance of prosecutorial misconduct, any impropriety in the prosecutor'ssummation remark that the officers "weren't expecting to find drugs or anything in the[car]" wasnot sufficiently egregious to deprive defendant of a fair trial; as such, it cannot be said thatdefense counsel was ineffective for failing to object to that comment (see People v Grant, 160 AD3d1406, 1407 [4th Dept 2018], lv denied 31 NY3d 1148 [2018]).
Fourth, because—as explained above—defendant had no viable grounds forsecuring the dismissal of the superceding indictment pursuant to CPL 190.50 (5), defensecounsel's failure to seek the indictment's dismissal on that basis was not ineffective (see People v Rotger, 129 AD3d1330, 1332 [3d Dept 2015], lv denied 26 NY3d 1011 [2015], 27 NY3d 1005 [2016];People v Caban, 89 AD3d1321, 1322-1323 [3d Dept 2011]). To the extent that defendant also contends that counselwas ineffective for failing to serve a proper cross grand jury notice prior to the supercedingpresentation, that contention lacks merit (see People v Simmons, 10 NY3d 946, 949 [2008]).
Given defendant's resentencing, we do not consider his challenge to the severity of hisoriginal sentence, and we dismiss the appeal from the judgment to that extent (see People v Robinson, 151 AD3d1851, 1852 [4th Dept 2017], lv denied 29 NY3d 1133 [2017]; People v Dean, 41 AD3d 495, 495[2d Dept 2007], lv denied 9 NY3d 1005 [2007]). The resentence itself is not before usbecause defendant did not appeal therefrom (see People v Kuras, 49 AD3d 1196, 1197 [4th Dept 2008], lvdenied 10 NY3d 866 [2008]; cf. Dean, 41 AD3d at 495-496). Defendant's remainingcontention is unpreserved for appellate review, and we decline to exercise our power to address itas a matter of discretion in the interest of justice (see People v Cullen, 110 AD3d 1474, 1475 [4th Dept 2013],affd 24 NY3d 1014 [2014]; see generally CPL 470.15 [6] [a]).Present—Centra, J.P., Lindley, DeJoseph, NeMoyer and Winslow, JJ.