| People v Sostre |
| 2019 NY Slip Op 03846 [172 AD3d 1623] |
| May 16, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Dayvon Sostre, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Rumsey, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered April 12, 2017, upon a verdict convicting defendant of the crimes of criminalpossession of a weapon in the second degree and criminal possession of a controlled substance inthe seventh degree.
In June 2016, defendant was a passenger in a car that was stopped by State Trooper EricVanBramer for violations of the Vehicle and Traffic Law. Upon approaching the vehicle,VanBramer detected the odor of marihuana and asked both the driver and defendant foridentification. When defendant was unable to provide identification, VanBramer ordereddefendant to exit the vehicle. When State Trooper David Notarino arrived on the scene, he andVanBramer conducted a search of the vehicle, finding a red duffel bag on the rear passenger seatand, within that duffel bag, a smaller red toiletry bag that contained marihuana. The search wascontinued with a canine, who alerted when it neared the duffel bag. Upon a further search of theduffel bag, the troopers found an unloaded semiautomatic handgun, ammunition, cocaine anddefendant's workplace photo identification and pay stub. Defendant was thereafter charged byindictment with criminal possession of a weapon in the second degree and criminal possession ofa controlled substance in the fifth degree. After a hearing, County Court denied defendant'smotion to suppress the evidence that was seized during the search of the vehicle. Prior to trial,the charge of criminal possession of a controlled substance in the fifth degree was reduced tocriminal possession of a controlled substance in the seventh degree. After a jury trial, defendantwas found guilty of both charges and was thereafter sentenced, as a second violent felonyoffender, to a prison term of 10 years, to be followed by five years of postrelease supervision, forhis conviction of criminal possession of a weapon in the second degree, and to a concurrent termof incarceration of one year for his conviction of criminal possession of a controlled substance inthe seventh degree. Defendant appeals.
Defendant argues that County Court erred in denying his motion to suppress the evidencethat was seized upon the search of the vehicle. Defendant does not dispute that VanBramer hadthe authority to stop the vehicle based upon violations of the Vehicle and Traffic Law; however,he contends that the length and circumstances of the continued detention were not justified. "Asfor the ensuing search of the vehicle, it is settled that the odor of marihuana emanating from avehicle, when detected by an officer qualified by training and experience to recognize it, issufficient to constitute probable cause to search a vehicle and its occupants" (People v Dolan, 165 AD3d 1499,1500 [2018] [internal quotation marks and citations omitted]). At the suppression hearing,VanBramer testified that, upon approaching the passenger side of the vehicle, he "smelled anodor of marihuana emitting from the vehicle," and that he conducted the search only after neitherthe driver nor defendant—who claimed to be cousins—could provide the otherperson's last name. Deferring to County Court's determination that VanBramer was a crediblewitness, we conclude that County Court properly denied defendant's suppression motion (see People v Acevedo, 118 AD3d1103, 1106 [2014], lv denied 26 NY3d 925 [2015]).
We similarly find no error in County Court's admission of a redacted audio recording of aphone call placed from the jail where defendant was held prior to trial. Defendant's contentionthat the People failed to establish a proper foundation by failing to establish that defendant wasthe speaker is unavailing. In that regard, "a speaker's identity may be proven throughcircumstances surrounding the recorded conversation, which must include sufficient indicia ofreliability, such as the substance of the conversation confirming the identity of the party" (People v Lancaster, 121 AD3d1301, 1304 [2014] [internal quotation marks and citation omitted], lv denied 24NY3d 1121 [2015]). In that regard, use of personal identification numbers (hereinafter PINs) thatare required to place a phone call are sufficient indicia of reliability (see People v Racks, 125 AD3d692, 694 [2015], lv denied 25 NY3d 992 [2015]). Marcus Decker, a sergeant in theAlbany Crime Analysis Center, testified that, to place a phone call from the jail where defendantwas held following his arrest, an inmate must enter two PINs that are assigned to him or her bythe jail and, further, that the PINs assigned to defendant were used to place the relevant phonecall. Moreover, the phone call was purportedly placed to defendant's mother, and the caller refersto the woman with whom he is speaking as his mother.[FN*]
Defendant further argues that the verdict was not supported by legally sufficient evidence andwas against the weight of the evidence. "When considering a challenge to the legal sufficiency ofthe evidence, we view the evidence in the light most favorable to the People and evaluatewhether there is any valid line of reasoning and permissible inferences which could lead arational person to the conclusion reached by the jury on the basis of the evidence at trial and as amatter of law satisfy the proof and burden requirements for every element of the crime charged.Moreover, in assessing the weight of the evidence, where, as here, a different verdict would nothave been unreasonable, this Court must, like the trier of fact below, weigh the relative probativeforce of conflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony. In conducting a weight of the evidence analysis, we must givedeference to the jury's credibility assessments" (People v Anatriello, 161 AD3d 1383, 1384-1385 [2018] [internalquotation marks and citations omitted], lv denied 31 NY3d 1144 [2018]).
Defendant specifically contends that the evidence was legally insufficient to convict him ofeither charge because it did not establish his possession of the weapon, ammunition and drugsthat were found in the duffel bag. As an occupant of the vehicle in which the weapon,ammunition and cocaine were found, defendant was presumed to be in possession of those items(see Penal Law §§ 220.25 [1]; 265.15 [3]). The evidence, viewed inthe light most favorable to the People, fails to rebut the presumption. Indeed, VanBramer'stestimony that he found defendant's workplace identification and pay stub in the front pocket ofthe duffel bag tends to establish that the duffel bag and its contents belonged to, or were inpossession of, defendant. VanBramer's testimony also rebuts defendant's claim that his workplaceidentification and pay stub were planted in the duffel bag by the driver. VanBramer testified that,although he conducted an interview of defendant while both were standing near the rear of thevehicle, he maintained an unobstructed view of the driver, who remained in the vehicle and facedforward the entire time without making any movement toward the rear seat, where the duffel bagwas located. Thus, the evidence was legally sufficient to support the convictions.
Turning to the weight of the evidence analysis, a different verdict would not have beenunreasonable in light of defendant's testimony. Although it is undisputed that a weapon,ammunition, cocaine and defendant's workplace identification and pay stub were recovered fromthe duffel bag that was taken from the rear seat of the vehicle in which defendant was apassenger, defendant denied having had any knowledge of the existence of the duffel bag.Further, defendant also testified that he had placed his workplace identification and pay stub inthe center console of the vehicle and argued that the driver must have moved them to the duffelbag during the traffic stop. However, defendant did not produce his workplace identification inresponse to VanBramer's inquiry, notwithstanding his claim that it was readily available.Moreover, VanBramer testified that he maintained an unobstructed view of the driver during theentire time that the driver remained in the vehicle, and that he did not see the driver make anymovements toward the duffel bag. Further, during the phone call that defendant made to hismother from the jail, he told her that he could not tell her over the phone why he had been headedto the City of Troy, Rensselaer County when he was arrested, directly contradicting his priortestimony that his mother had invited him to dinner that evening. When we view this evidence ina neutral light and defer to the jury's credibility assessments, we find that defendant's convictionsare supported by the weight of the evidence.
Defendant's various claims of prosecutorial misconduct during the People's summation werenot preserved for our review by specific objections at trial (see People v Tonge, 93 NY2d838, 839-840 [1999]; People vStanford, 130 AD3d 1306, 1309 [2015], lv denied 26 NY3d 1043 [2015]). Wedecline defendant's invitation to take corrective action in the interest of justice. Were this issueproperly before us, however, we would find that the challenged statements were fair commentaryon the evidence and issues in the case that did not improperly shift the burden of proof todefendant (see People v Stanford, 130 AD3d at 1309).
Defendant further argues that he was denied the effective assistance of counsel. "To prevailon an ineffective assistance claim, a defendant bears the burden of demonstrating that defensecounsel deprived him or her of a fair trial by providing less than meaningful representation" (People v Perry, 154 AD3d 1168,1171 [2017] [internal quotation marks and citations omitted]). "This standard is not amenable toprecise demarcation and necessarily hinges upon the facts and circumstances of each particularcase. A reviewing court must avoid confusing true ineffectiveness with mere losing tactics andaccording undue significance to retrospective analysis. In short, the Constitution guarantees adefendant a fair trial, not a perfect one" (People v De Marco, 33 AD3d 1045, 1046 [2006] [internalquotation marks, brackets and citations omitted]).
Defendant specifically contends that counsel was ineffective by failing to challenge potentialjurors for bias, by failing to impeach VanBramer's testimony regarding whether he smelled bothfresh and burnt marihuana and by failing to seek a pretrial ruling on the audibility of the recordedphone call. These alleged errors are a speculative effort to second-guess trial strategy. Our reviewof the record shows that defense counsel provided meaningful representation by pursing arational trial strategy—that the driver placed defendant's identification and other workdocuments into the duffel bag while defendant was speaking withVanBramer—conducting a meaningful voir dire of prospective jurors, effectivelycross-examining the People's witnesses and delivering cogent opening and closing statementsthat were consistent with the trial strategy (see People v Perry, 154 AD3d at 1171; People v Turner, 37 AD3d 874,876-877 [2007], lv denied 8 NY3d 991 [2007]; People v De Marco, 33 AD3d at1045).
Finally, defendant did not preserve his claim that the sentence imposed constituted a penaltyfor exercising his constitutional right to a jury trial (see People v Williams, 163 AD3d 1160, 1166 [2018], lvdenied 32 NY3d 1179 [2019]; People v Luciano, 152 AD3d 989, 995 [2017], lv denied 30NY3d 1020 [2017]). We also reject defendant's contention that his sentence—which wasless than the maximum permissible term—should be reduced in the interest of justice. "Asentence that falls within the permissible statutory range will not be disturbed unless it can beshown that the sentencing court abused its discretion or extraordinary circumstances existwarranting a modification" (People vVega, 170 AD3d 1266, 1274 [2019] [internal quotation marks and citations omitted]).We find no such extraordinary circumstances or abuse of discretion that warrant modification inthe interest of justice in light of defendant's previous conviction for the criminal possession of aweapon in the second degree and his failure to accept responsibility for his actions (seePeople v Williams, 163 AD3d at 1166). Defendant's remaining contentions have beenexamined and found to lack merit.
Garry, P.J., Clark, Mulvey and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:We note that we find the audiorecordings of the phone call to be audible.