| People v Lindsey |
| 2019 NY Slip Op 04049 [172 AD3d 1764] |
| May 23, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Noah D. Lindsey, Appellant. |
Sanders L. Denis, Jackson Heights, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Jordan J. Yorke of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered October 3, 2016, 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.
On February 29, 2016, police executed a warrant authorizing a search of defendant's personand residence for narcotics. As a result of those searches, police recovered from defendant'shome a 9 millimeter semiautomatic pistol with a magazine containing 16 rounds of 9 millimeterammunition, a bag of 25 glassine envelopes containing a substance later determined to be heroinand various items that are commonly used in connection with the sale of drugs. Defendant wassubsequently interviewed by the police, at which time he made several inculpatory statements,including that the pistol and the drugs found during the search belonged to him. Defendant wasthereafter indicted on, as relevant here, charges of criminal possession of a weapon in the seconddegree and criminal possession of a controlled substance in the third degree.[FN1] Following a jury trial, defendantwas convicted of criminal possession of a weapon in the second degree and criminal possessionof a controlled substance in the seventh degree, a lesser included offense of criminal possessionof a controlled substance in the third degree.
Prior to sentencing, County Court assigned defendant new counsel to assist him with filing aCPL 330.30 motion based upon defendant's assertion that he had received ineffective assistanceof counsel during the plea bargaining process. However, defendant's new counsel ultimatelydetermined that there was no legal or factual basis for bringing that motion. Defendant wasthereafter sentenced to a prison term of eight years, followed by five years of postreleasesupervision, for his conviction of criminal possession of a weapon in the second degree and aconcurrent prison term of one year for his conviction of criminal possession of a controlledsubstance in the seventh degree. Defendant now appeals, and we affirm.
Initially, defendant failed to preserve his contention that the trial judge should have recusedhimself because he signed the search warrant authorizing the search of defendant's person andresidence (see CPL 470.05 [2]; People v Gonzalez, 207 AD2d 734, 735 [1994],lv denied 84 NY2d 1011 [1994]). In any event, were this argument preserved for ourreview, we would find it to be patently without merit (see People v McCann, 85 NY2d951, 953 [1995]; People v Barone, 109 AD2d 1075, 1076-1077 [1985]). There was nostatutory basis compelling recusal (see Judiciary Law § 14) and, thus, thejudge was "the sole arbiter of recusal" (People v Moreno, 70 NY2d 403, 405[1987]).
Defendant also argues that County Court should have precluded the People from introducinginto evidence his statement to police that he owned the pistol for protection because he "jacks"drug dealers. Evidence of a defendant's uncharged crimes or prior bad acts is inadmissible if itssole purpose is to demonstrate the defendant's propensity to commit the charged crime or his orher bad character (see People vLeonard, 29 NY3d 1, 6 [2017]; People v Alvino, 71 NY2d 233, 241-242[1987]). However, such evidence may be admissible if it is probative of some other materialissue or fact in the case and its probative value outweighs any undue prejudice (see People vLeonard, 29 NY3d at 6; People v Blair, 90 NY2d 1003, 1004-1005 [1997]). Amongother recognized Molineux exceptions, evidence of uncharged crimes or prior bad actscan be relevant to demonstrate motive, intent, knowledge, the absence of mistake or accident, acommon scheme or plan or the identity of the defendant (see People v Cass, 18 NY3d 553, 560 [2012]; People vAlvino, 71 NY2d at 241-242).
Assuming, without deciding, that County Court correctly concluded that the uncharged crimeat issue here (e.g., robbing drug dealers) was probative of defendant's alleged intent to sell,County Court failed to engage in the requisite weighing of the probative value of such evidenceagainst its potential for undue prejudice (see People v Shortell, 155 AD3d 1442, 1444-1445 [2017], lvdenied 31 NY3d 1087 [2018]; People v Elmy, 117 AD3d 1183, 1186-1187 [2014]). Moreover,County Court did not issue a limiting instruction to the jury regarding the proper purpose of thechallenged evidence (see People vLindsey, 75 AD3d 906, 908 [2010], lv denied 15 NY3d 922 [2010]).Nevertheless, given that defendant admitted to owning the pistol and the heroin discovered in hishome and that, through those admissions, he demonstrated considerable knowledge about thespecific items recovered, we find the evidence against defendant to be overwhelming and that,therefore, County Court's errors were harmless (see People v Kalina, 149 AD3d 1264, 1267 [2017], lvdenied 29 NY3d 1092 [2017]; People v Lindsey, 75 AD3d at 908).
Defendant further asserts that trial counsel provided him with ineffective assistance. Toprevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that his orher counsel failed to provide meaningful representation (see People v Caban, 5 NY3d 143, 152 [2005]; People vRivera, 71 NY2d 705, 709 [1988]). In doing so, it is incumbent upon the defendant toestablish the absence of strategic or other legitimate explanations for counsel's alleged deficientconduct (see People v Caban, 5 NY3d at 152; People v Benevento, 91 NY2d 708,712 [1998]), as "a reasonable and legitimate strategy under the circumstances and evidencepresented, even if unsuccessful, . . . will not fall to the level of ineffectiveassistance" (People v Benevento, 91 NY2d at 712-713; see People v Taylor, 1 NY3d 174,177 [2003]).
Defendant's claim of ineffective assistance of trial counsel is premised upon two allegederrors, the first of which is trial counsel's decision to waive a Huntley hearing. Asrevealed by the record, trial counsel indicated in a letter to County Court that defendant waswaiving a Huntley hearing in exchange for the early receipt of Rosario materialand the People's agreement to keep open a plea offer. Accordingly, it is clear that defendant's trialcounsel had legitimate strategic reasons for waiving a Huntley hearing and, therefore,defendant's criticism of counsel cannot support a finding of ineffective assistance (see People v Umana, 143 AD3d1174, 1175 [2016], lv denied 29 NY3d 1037 [2017]; People v Hammond, 107 AD3d1156, 1156 [2013]).
Defendant next faults trial counsel for not objecting to testimony given by a police officerthat defendant was "known to carry a firearm." Contrary to defendant's contention, suchtestimony did not constitute inadmissible hearsay, as it was not offered for the truth of the matterasserted (see People v Irby, 140AD3d 1319, 1323 [2016], lv denied 28 NY3d 931 [2016]; People v McCottery, 90 AD3d1323, 1325 [2011], lv denied 19 NY3d 975 [2012]). Rather, the testimony wasoffered as an explanation for the officer's conduct when interacting with defendant (seePeople v Irby, 140 AD3d at 1323; People v Coker, 121 AD3d 1305, 1306 [2014], lv denied 26NY3d 927 [2015]).[FN2]Thus, had trial counsel objected to the testimony at trial, such objection would have had little tono likelihood of success and, consequently, counsel cannot be faulted for not making it (see People v Brown, 169 AD3d1258, 1260 [2019]; People vPratt, 162 AD3d 1202, 1203 [2018], lv denied 32 NY3d 940 [2018]; People v Stokes, 159 AD3d 1041,1043 [2018]). Notwithstanding defendant's criticisms, we find that, overall and viewed in totality,defendant's trial counsel provided meaningful representation (see People v Benevento, 91NY2d at 714-715; People v Nguyen,90 AD3d 1330, 1335 [2011], lv denied 18 NY3d 960 [2012]).
We similarly find no merit to defendant's contention that his substitute counsel at sentencingwas ineffective because he did not advocate more forcefully for a lenient sentence. The recordreflects that defendant's sentencing counsel read the presentence investigation report and,contrary to defendant's contention, was familiar with defendant's background. Althoughsentencing counsel could have specifically highlighted potential mitigating factors for CountyCourt, defendant spoke on his own behalf and requested that the court afford him mercy inrendering sentence. Moreover, the potential mitigating factors raised by defendant on appealwere discernible from the presentence investigation report. Accordingly, under all of thecircumstances, counsel's performance at sentencing did not amount to ineffective assistance (see People v Carver, 27 NY3d418, 421 [2016]).
Defendant's remaining contentions require only brief discussion. Defendant's challenge to theparticular corroborating evidence charge issued by County Court is unpreserved (see People vValdez-Rodrigues, 235 AD2d 627, 629 [1997], lv denied 89 NY2d 1041 [1997]).Nevertheless, were we to consider the issue, we would find that the court did not place any undueemphasis on the particular evidence asserted by the People to corroborate defendant's admissions(see People v Adams, 278 AD2d 920, 922 [2000], lv denied 96 NY2d 825[2001]; People v Valdez-Rodrigues, 235 AD2d at 629; People v Harris, 171AD2d 882, 883 [1991], lv denied 78 NY2d 955 [1991]). Defendant also failed topreserve his claim that his sentence was imposed as a penalty for exercising his right to a jurytrial or that it was otherwise retaliatory or vindictive (see People v Williams, 163 AD3d 1160, 1165 [2018], lvdenied 32 NY3d 1179 [2019]; People v Haskins, 121 AD3d 1181, 1185 [2014], lv denied24 NY3d 1120 [2015]). In any event, even if preserved, there is nothing in the record to supportsuch a claim (see People v Pitt, 170AD3d 1282, 1286 [2019]; People vSpeed, 134 AD3d 1235, 1236-1237 [2015], lv denied 27 NY3d 1155 [2016]). Tothe extent that we have not discussed any of defendant's remaining arguments, they have beenexamined and found to be lacking in merit.
Lynch, J.P., Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The indictment also chargeddefendant with criminal possession of a controlled substance in the seventh degree, but thePeople withdrew that charge prior to trial.
Footnote 2:Defendant failed to preserve hiscontention that County Court should have given a limiting instruction to the jury regarding thepolice officer's testimony (see People v Tucker, 291 AD2d 663, 665 [2002], lvdenied 98 NY2d 703 [2002]). In any event, we would find any such error to be harmless inlight of the overwhelming evidence of defendant's guilt (see People v Crimmins, 36NY2d 230, 238-239 [1975]; People vKobbah, 168 AD3d 562, 562 [2019]).