| People v Patterson |
| 2019 NY Slip Op 04825 [173 AD3d 1737] |
| June 14, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Rudy C. Patterson, Appellant. |
Bridget L. Field, Rochester, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Lisa Gray of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.),rendered October 20, 2014. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a controlled substance in the third degree and criminal possession of a controlledsubstance in the fifth degree.
It is hereby ordered that the judgment so appealed from is modified on the law by reversingthat part convicting defendant of criminal possession of a controlled substance in the fifth degreeand as modified the judgment is affirmed, and a new trial is granted on that count of theindictment.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal possession of a controlled substance (CPCS) in the third degree (Penal Law§ 220.16 [1]) and CPCS in the fifth degree (§ 220.06 [5]). In June2013, a plainclothes police officer observed a sedan make a right turn without a proper turnsignal and relayed that information by radio to a uniformed police officer. The uniformed officerstopped the sedan and approached its driver, defendant. At that point, the uniformed officerdetected an odor of alcohol and marihuana and observed that defendant had watery, bloodshoteyes. Defendant was thereafter frisked, and the officers recovered from his person a large rock ofcrack cocaine, several dime bags containing smaller amounts of crack cocaine, and $349cash.
Contrary to defendant's contention, County Court (Piampiano, J.) properly refused tosuppress physical evidence and statements. A police stop of a vehicle is permissible where apolice officer has probable cause to believe that the driver of the vehicle has committed a trafficviolation (see People v Robinson, 97 NY2d 341, 349 [2001]; People v Robinson, 122 AD3d1282, 1283 [4th Dept 2014]). An officer who lacks personal knowledge sufficient toestablish probable cause may rely on information communicated by a fellow officer," 'provided that the police as a whole were in possession of information sufficient toconstitute probable cause' " (People v Ramirez-Portoreal, 88 NY2d 99, 113[1996]; see also People v Mobley,120 AD3d 916, 918 [4th Dept 2014]). At the suppression hearing, the uniformed officertestified that he received a radio communication from the plainclothes officer, who observed asedan use an improper turn signal (see Vehicle and Traffic Law § 1163),and also received radio communications advising as to the sedan's location and direction oftravel. Immediately after the uniformed officer received those communications, he spotted asedan in that location and traveling in that direction. An audio recording of thosecommunications was received in evidence and is consistent with the uniformed officer'stestimony in that regard. The uniformed officer thus was justified in stopping the sedan becausehe had probable cause to believe that its driver had committed a traffic violation (see People v Robinson, 134 AD3d1538, 1539 [4th Dept 2015]).
Defendant further contends that Supreme Court (Moran, J.), to which the matter wastransferred prior to trial, abused its discretion in reassigning a certain attorney to serve as hisdefense counsel because the court had previously relieved that same attorney due to an apparentconflict of interest. We reject that contention. Inasmuch as the record establishes that the conflicthad been resolved prior to the reassignment of defense counsel, we conclude that defendantfailed to establish the existence of a genuine conflict between himself and counsel (see People v Correa, 145 AD3d1640, 1641 [4th Dept 2016]; see generally People v Sides, 75 NY2d 822, 824[1990]).
Defendant next contends that the court erred in denying his challenge for cause to aprospective juror. We reject that contention as well. Whenever a statement made by a prospectivejuror casts "serious doubt" on his or her ability to render an impartial verdict, the court mustexcuse that prospective juror for cause unless he or she provides an "unequivocal assurance" thathe or she can set aside any bias and render an impartial verdict based on the evidence (People v Warrington, 28 NY3d1116, 1119-1120 [2016] [internal quotation marks omitted]; see People v Garcia, 148 AD3d1559, 1559-1560 [4th Dept 2017], lv denied 30 NY3d 980 [2017]).
Here, during voir dire, defense counsel asked a panel of prospective jurors: "Does anybodyhere need to hear the defendant testify?" One of the prospective jurors (juror) gave an affirmativeresponse. Defense counsel asked the juror a follow-up question: "Is that important to you that hetestify or you would think maybe he's hiding something?" In response, the juror gave a responseindicating that she would reach a verdict based upon the facts presented and the elements of thecrime. Defense counsel then asked whether the juror would hold defendant's silence against him;the juror stated that she did not believe that she would. Defense counsel then repeated her initialquestion, i.e., whether the juror would need to hear defendant testify. The juror answered: "Iwould feel like I had more information if I heard from him than if I did not." Upon furtherquestioning, the juror indicated that she would not need to hear defendant's testimony in order toreach a decision on a verdict. The juror added: "I wouldn't necessarily think he was hidingsomething." In summary, although the juror initially indicated that she would "need" to heardefendant's testimony, when defense counsel asked her further clarifying questions, the juror'sstatements indicated that she would not be influenced by defendant's silence and that she wouldbe able to decide the case based upon the law and the facts. We thus conclude that the juror'sstatements did not "raise a serious doubt regarding the ability to be impartial"(Warrington, 28 NY3d at 1119 [internal quotation marks omitted]; cf. People v Hargis, 151 AD3d1946, 1947 [4th Dept 2017]).
We reject defendant's further contention that the court abused its discretion in allowingpolice testimony at trial with respect to the element of intent to sell. The officer testified that, insix years on the department's tactical unit, he had participated in thousands of drug arrests,including the arrest of defendant, and, in his experience, crack users typically carry a limitedamount of crack. Although the officer had encountered crack users with a rock of crack, he hadnever encountered a crack user carrying a rock, several dime bags, and a large amount of cash.The court properly allowed the officer's testimony because it was limited to matters related todrug transactions that were not within the common knowledge or experience of the average juror,and thus the testimony did not invade the jury's fact-finding function (see People v Hicks, 2 NY3d 750,751 [2004]; cf. People v Hartzog, 15AD3d 866, 866-867 [4th Dept 2005], lv denied 4 NY3d 831 [2005]).
We also reject defendant's challenge to the legal sufficiency of the evidence. Viewing theevidence in the light most favorable to the People, we conclude that there is a "valid line ofreasoning and permissible inferences [that] could lead a rational person to the conclusion reachedby the [factfinder] on the basis of the evidence at trial" (People v Williams, 84 NY2d925, 926 [1994]; see People vDanielson, 9 NY3d 342, 349 [2007]), and thus that the evidence is legally sufficientwith respect to both counts (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Furthermore, viewing the evidence in light of the elements of the crimes as charged to the jury(see Danielson, 9 NY3d at 349), we reject defendant's contention that the verdict isagainst the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Defendant failed to preserve his contention that the prosecutor, in describing the testimony ofthe police witnesses as "untouchable," improperly vouched for their credibility because defendantdid not object to the remark on that ground (see generally People v Simmons, 133 AD3d 1227, 1228 [4th Dept2015]). Although defendant preserved his contention that the prosecutor's remark improperlyshifted the burden of proof, we nevertheless conclude that the remark was isolated and did notdeprive defendant of a fair trial (seePeople v Walker, 117 AD3d 1441, 1442 [4th Dept 2014], lv denied 23 NY3d1044 [2014]). We further conclude that all of the remaining challenged remarks were faircomment on the evidence (see People vEasley, 124 AD3d 1284, 1285 [4th Dept 2015], lv denied 25 NY3d 1200[2015]).
We agree with defendant, however, that the court erred in refusing to submit CPCS in theseventh degree (Penal Law § 220.03) to the jury as a lesser included offense ofCPCS in the fifth degree. A party who seeks to have a lesser included offense submitted to thejury must satisfy a two-pronged test: "First, the crime must be a lesser included offense withinthe meaning of Criminal Procedure Law § 1.20 (37) . . . Second, theparty making the request for a charge-down 'must then show that there is a reasonable view of theevidence in the particular case that would support a finding that [the defendant] committed thelesser included offense but not the greater' " (People v Rivera, 23 NY3d 112, 120 [2014]). Both prongs aresatisfied here. CPCS in the seventh degree is a lesser included offense of CPCS in the fifthdegree under Penal Law § 220.06 (5) (cf. People v Scott, 120 AD3d 1573, 1573-1574 [4th Dept 2014],lv denied 24 NY3d 1088 [2014];People v Demus, 82 AD3d 1667, 1668 [4th Dept 2011], lv denied 17 NY3d 815[2011]). Furthermore, there is a reasonable view of the evidence that defendant committed thelesser offense but not the greater (cf. Scott, 120 AD3d at 1574; see generallyRivera, 23 NY3d at 120). A person is guilty of CPCS in the fifth degree when he or sheknowingly and unlawfully possesses cocaine weighing 500 milligrams or more (see§ 220.06 [5]), whereas a person is guilty of CPCS in the seventh degree when he orshe knowingly and unlawfully possesses a controlled substance (see§ 220.03). In his trial testimony, defendant denied possessing the crack rock, butadmitted to possessing the dime bags. A forensic chemist testified that the weight of the crackrock was greater than the aggregate weight of the pure cocaine in the rock and the dime bagscombined. If the jury credited defendant's testimony with respect to the rock, it reasonably couldhave found that defendant possessed some amount of cocaine, but that the People failed toestablish that he possessed cocaine weighing 500 milligrams or more. We therefore modify thejudgment by reversing that part convicting defendant of CPCS in the fifth degree, and we grantdefendant a new trial on that count.
Defendant's remaining contentions do not require reversal or further modification of thejudgment. In particular, we conclude that the record establishes that defendant "was given areasonable opportunity to appear before the Grand Jury but declined to take advantage of it"(People v Sumpter, 178 AD2d 973, 974 [4th Dept 1991], lv denied 80 NY2d 896[1992]) and that the court properly refused to declare a mistrial as a sanction for the People's lossof the cash recovered from his person (see generally People v Kelly, 62 NY2d 516,520-521 [1984]). Finally, the sentence with respect to the first count of the indictment is notunduly harsh or severe.
All concur except Lindley, J., who dissents and votes to reverse in accordance with thefollowing memorandum.
Lindley, J. (dissenting). I agree with all of the majority's conclusions save one. Unlike themajority, I conclude that Supreme Court erred in denying defendant's challenge for cause to aprospective juror who expressed a bias during voir dire. I therefore respectfully dissent andwould reverse the judgment and grant a new trial.
The relevant law is well settled. "[A] prospective juror whose statements raise a seriousdoubt regarding the ability to be impartial must be excused unless the juror states unequivocallyon the record that he or she can be fair and impartial" (People v Chambers, 97 NY2d 417,419 [2002]; see People v Arnold, 96 NY2d 358, 362 [2001]). "By contrast, whereprospective jurors unambiguously state that, despite preexisting opinions that might indicate bias,they will decide the case impartially and based on the evidence, the trial court has discretion todeny the challenge for cause if it determines that the juror's promise to be impartial is credible"(Arnold, 96 NY2d at 363).
Here, at the outset of voir dire, the court provided preliminary legal instructions to theprospective jurors. The court properly instructed the prospective jurors, among other things, that"defendants are not obligated to take the witness stand, call witnesses or explain their actions inany way." The court also stated that the jurors selected to hear the case could not draw "anyinference unfavorable to the defendant" should he not testify or present evidence.
During the first round of questioning, defense counsel asked the panel of prospective jurorswhether anyone needed to hear defendant testify. Prospective juror number three (juror)answered "Yes." There can be no dispute that the juror's answer "suggested that defendant had anobligation to testify, thereby casting serious doubt on her ability to render an impartial verdict"(People v Hargis, 151 AD3d1946, 1947 [4th Dept 2017]; see People v Bludson, 97 NY2d 644, 645-646 [2001];People v Casillas, 134 AD3d1394, 1396 [4th Dept 2015]).
The question thus becomes whether the juror thereafter unequivocally stated that, despiteneeding to hear from defendant, she could follow the court's instructions and decide the caseimpartially and based solely on the evidence. The answer to that question is clearly no, and themajority does not contend otherwise. Instead, the majority appears to conclude that subsequentstatements made by the juror alleviated any concern about her ability to render an impartialverdict. I cannot agree. Nothing said by the juror after her initial statement provided anunequivocal assurance that her "need" to hear from defendant would not influence herverdict.
The fact that the juror subsequently stated that she could assess the elements of the crime andrender a decision without defendant's testimony does not establish that she would beuninfluenced by defendant's failure to testify. And the fact that the juror stated that she "believed"that she would not hold defendant's failure to testify against him did not, in my view, provide therequisite unequivocal assurance of impartiality. "[T]he very point of the unequivocal assurance ofimpartiality is to allow[ ] a juror to purge a previous opinion . . . by expresslydeclaring that he [or she] will not be influenced by [that] prior opinion" (People v Warrington, 28 NY3d1116, 1120 [2016] [internal quotation marks omitted and emphasis added]). Here, there wasno unequivocal or express declaration by this juror that she would not be influenced bydefendant's failure to testify.
Moreover, the juror's statement about needing to hear from defendant "called for a promptinstruction on the relevant principles regarding the burden of proof and a defendant's right not totestify or present evidence, along with the elicitation of unequivocal assurances that the panelistswould follow that charge" (People vJackson, 125 AD3d 485, 486 [1st Dept 2015]). The court did not provide such aninstruction to the jury.
As the Court of Appeals has advised, " 'the trial court should lean towarddisqualifying a prospective juror of dubious impartiality, rather than testing the bounds ofdiscretion by permitting such a juror to serve' " (People v Blyden, 55 NY2d 73,78 [1982]; see People v Webster, 177 AD2d 1026, 1027 [4th Dept 1991], lvdenied 79 NY2d 866 [1992]). "Even if, through such caution, the court errs and removes animpartial juror, 'the worst the court will have done . . . is to have replaced oneimpartial juror with another impartial juror' " (Blyden, 55 NY2d at 78). Thecautious approach recommended by the Court of Appeals was not followed in this case. Itherefore conclude that the court erred in denying defendant's challenge for cause.Present—Centra, J.P., Peradotto, Lindley, NeMoyer and Troutman, JJ.