| People v Valentin |
| 2019 NY Slip Op 05015 [173 AD3d 1436] |
| June 20, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v John A. Valentin, Also Known as Poppy,Appellant. |
Catherine A. Barber, Guilderland, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the Supreme Court (McDonough, J.), rendered July 1,2016 in Albany County, upon a verdict convicting defendant of the crimes of criminal sale of acontrolled substance in the third degree (two counts), criminal possession of a controlledsubstance in the third degree and criminal possession of a controlled substance in the seventhdegree.
In the spring of 2015, police officers conducted two controlled buys, in which a confidentialinformant (hereinafter CI) purchased heroin from defendant at his residence in the City ofAlbany. Defendant's residence was subsequently searched pursuant to a warrant, and heroin anditems associated with the packaging and sale of drugs were recovered. In June 2015, defendantwas charged in a six-count indictment. He was convicted following a jury trial of two counts ofcriminal sale of a controlled substance in the third degree, one count of criminal possession of acontrolled substance in the third degree and one count of criminal possession of a controlledsubstance in the seventh degree, and was acquitted of two other charges. Defendant wassentenced, as a second felony offender, to prison terms of six years on each conviction ofcriminal sale of a controlled substance in the third degree and to three years on the conviction ofcriminal possession of a controlled substance in the third degree, to run consecutively to eachother, and to a concurrent jail term of one year, plus three years of postrelease supervision, on theconviction of criminal possession of a controlled substance in the seventh degree. Defendantappeals.
Defendant contends that his convictions are not supported by legally sufficient evidence andare against the weight of the evidence in that the People failed to call the CI to testify.Defendant's argument as to legal sufficiency is unpreserved for our review, as his general motionfor a trial order of dismissal was not based upon the specific claim that he now asserts on appeal(see People v Finch, 23 NY3d408, 423 [2014]; People vSpencer, 169 AD3d 1268, 1268 [2019]). Nevertheless, our weight of the evidencereview requires that we "consider whether all of the elements of the charged crimes were provenbeyond a reasonable doubt" (People vHackett, 167 AD3d 1090, 1091 [2018] [internal quotation marks and citations omitted];see People v Danielson, 9 NY3d342, 348-349 [2007]). As pertinent here, the People were required to prove that defendantknowingly and unlawfully sold a narcotic drug (see Penal Law § 220.39[1]), that he knowingly and unlawfully possessed a narcotic drug (see Penal Law§ 220.03), and that he knowingly and unlawfully possessed a narcotic drug with theintent to sell it (see Penal Law § 220.16 [1]).
At trial, the People presented the testimony of multiple police officers with the City ofAlbany Police Department, audio and video recordings of the controlled buys, and evidencerelated to the search of defendant's residence. Taken together, the evidence established that adetective on the narcotics task force was informed by the CI—with whom he hadpreviously worked on other narcotics investigations—that defendant, known to her as"Poppy," was selling heroin from his residence in the City of Albany. In April and May 2015,two controlled buys were organized for the CI to purchase narcotics from defendant. Immediatelyprior to the first controlled buy, police officers searched the CI and her vehicle for contrabandand provided her with prerecorded buy money. The CI was also fitted with an audio and videorecording device and an additional device that transmitted audio live to the various officersconducting surveillance of the operation. The resulting video, which was played for the jury,shows the CI arriving at defendant's residence and being welcomed inside by an individual whomshe called "Poppy." The detective identified defendant as the individual in the video. Defendantis later seen handing the CI a substance that he calls "china white," a name that the detectivetestified, based upon his extensive training and experience in narcotics investigations, refers tohighly potent heroin. After leaving defendant's residence, the CI remained under surveillance asshe returned to police officers and was searched; 10 glassine envelopes containing what provedto be heroin were recovered.
On a later date, the CI made telephone contact with defendant to schedule the secondcontrolled buy. This phone call was recorded and the detective again identifieddefendant—whose voice he was familiar with based upon a prior in-personinteraction—as the person conversing with the CI during the call. Police officers againsearched the CI immediately prior to the second buy and provided her with prerecorded buymoney and audio and video recording devices. Although the CI was heard on a live audiotransmitting device briefly conversing with two people while walking to defendant's residence,officers conducting surveillance for the operation testified that the CI did not have any physicalcontact with these individuals. After entering defendant's residence, the video recording showsdefendant handing the CI certain items for which the CI pays him before leaving. Thereafter, theCI, who remained under surveillance, immediately returned to the detective's location and asubsequent search of the CI recovered 10 glassine envelopes containing a substance that latertested positive for heroin. Although the detective testified that the CI had also returned anyunused buy money at the end of each controlled buy, paperwork used to keep inventory of theoperations did not include any such notation.
A search warrant for defendant's residence was obtained and executed thereafter. Thedetective testified that no one was home during the search, but that mail and rent receipts for theproperty addressed to defendant were found inside. Upon his arrest, defendant was in possessionof a set of keys to the residence. A sergeant with the Albany Police Department testified that thesearch yielded, among other things, a quantity of heroin packaged in 44 glassine envelopes andorganized into bundles, and a ledger. A sergeant testified that other items discovered during thesearch—such as "plastic baggies" in the bedroom, a razor blade in the kitchen, rubberbands, a false-bottom container, and a digital scale—were commonly used for themeasuring and packaging of illegal narcotics. Over defense counsel's objections, the sergeantfurther testified that, based upon his extensive "training and experience" in narcoticsinvestigations, the names and numbers noted in the ledger were indicative of "drug sales andheroin transactions." At defense counsel's request, Supreme Court instructed the jury that thecontents of the ledger could only be considered as to defendant's intent to sell in relation to thecharge of criminal sale of controlled substance in the third degree. Defendant did not present anywitnesses or testify on his own behalf.
Had the jury declined to credit the People's evidence as to the identification of defendant onthe audio recordings and interpretation of his actions in the videos presented, a different verdictwould not have been unreasonable. Accordingly, "this Court must 'weigh the relative probativeforce of conflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony' " (People v Durfey, 170 AD3d 1331, 1332 [2019], quoting Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in a neutral light and deferringto the jury's "opportunity to view the witnesses, hear the testimony and observe demeanor," weare satisfied that, although the CI did not testify, defendant's convictions are supported by theweight of the evidence (People vRomero, 7 NY3d 633, 644 [2006] [internal quotation marks and citation omitted]; see People v Pearson, 151 AD3d1455, 1456 [2017], lv denied 30 NY3d 982 [2017]; People v Gethers, 151 AD3d 1398,1399-1400 [2017], lv denied 30 NY3d 980 [2017]; People v Wilkins, 75 AD3d 847, 849 [2010], lv denied 15NY3d 857 [2010]).
Defendant next contends that he was improperly denied a missing witness charge withrespect to the People's failure to call the CI to testify, as the CI was the only eyewitness to thecontrolled buys. A missing witness charge permits "a jury to draw an unfavorable inference basedon a party's failure to call a witness who would normally be expected to support that party'sversion of events" (People v Savinon, 100 NY2d 192, 196 [2003]). The charge iswarranted where it is established that "(1) the witness's knowledge is material to the trial; (2) thewitness is expected to give noncumulative testimony; (3) the witness is under the control of theparty against whom the charge is sought, so that the witness would be expected to testify in thatparty's favor; and (4) the witness is available to that party" (People v Martinez, 166 AD3d 1292, 1296 [2018] [internalquotation marks and citations omitted], lv denied 32 NY3d 1207 [2019]; see DeVito v Feliciano, 22 NY3d159, 165-166 [2013]). The issue here distills to whether the CI's testimony would have beencumulative; we agree with the People that, under the circumstances, the testimony would havebeen cumulative, as the officers' collective testimonies were corroborated by multiple video andaudio recordings detailing the controlled buys. Accordingly, the charge was not warranted, andSupreme Court ameliorated any prejudice by permitting defense counsel to nonetheless commenton the CI's absence during summation (see People v Wilkins, 75 AD3d at 849; People v Darby, 72 AD3d 1280,1282-1283 [2010], lv denied 15 NY3d 749 [2010]; see also People v Pearson,151 AD3d at 1457).
We are unpersuaded by defendant's argument that his counsel's failure to make a pretrialmotion to suppress the ledger deprived him of the effective assistance of counsel. A counsel'sfailure "to make a particular pretrial motion generally does not, by itself, establish ineffectiveassistance of counsel" (People v Rivera, 71 NY2d 705, 709 [1988]; see People vPaige, 289 AD2d 872, 873 [2001], lv denied 97 NY2d 759 [2002]). Further,ineffective assistance does not result from "failure to make a motion or argument that has little orno chance of success" (People vCaban, 5 NY3d 143, 152 [2005] [internal quotation marks and citation omitted]). Weagree with Supreme Court's assessment that the ledger's contents and related testimony were"admissible as to possession with intent to sell" such that "it would clearly have survived theMolineux application" had it been made (see People v Nicholas, 130 AD3d 1314, 1316 [2015]; People vButts, 177 AD2d 782, 783 [1991]). In any event, the record reflects that defense counselvigorously objected to testimony regarding its contents during trial and successfully obtained anappropriate limiting instruction (seePeople v Kims, 24 NY3d 422, 439 [2014]).
We similarly reject defendant's claim that his counsel was ineffective based upon his inquiryon voir dire that led to testimony regarding the discovery of ammunition and marihuana indefendant's home. In proving an ineffective assistance claim, "defendant must demonstrate theabsence of strategic or other legitimate explanations for counsel's alleged failure" (People v Nicholson, 26 NY3d 813,831 [2016]; accord People vNewman, 169 AD3d 1157, 1162 [2019]). Here, counsel's stated purpose in followingthis line of questioning was to show that the People's exhibit included only certain photographstaken during the search of defendant's residence, and " 'counsel's efforts should not besecond-guessed with the clarity of hindsight to determine how the defense might have been moreeffective' " (People vThomas, 105 AD3d 1068, 1071 [2013], quoting People v Benevento, 91 NY2d708, 712 [1998]). In any event, Supreme Court remedied any prejudice by instructing the jury todisregard the testimony. Viewing counsel's performance "in totality," and mindful that defendantwas acquitted of two of the six charges against him, we find that defendant received "meaningfulrepresentation" (People v Baldi, 54 NY2d 137, 147 [1981]; see People v Leflore, 154 AD3d1164, 1168 [2017], lv denied 30 NY3d 1106 [2018]).
We are unpersuaded by defendant's contention that his sentence was harsh and excessive.Defendant, a second felony offender with a lengthy criminal history involving multipledrug-related offenses, received a sentence well within the statutory guidelines. Accordingly, wefind no abuse of discretion or extraordinary circumstances to warrant the reduction of thesentence in the interest of justice (seePeople v Quintana, 159 AD3d 1122, 1128 [2018], lv denied 31 NY3d 1086[2018]; People v Johnson, 151AD3d 1462, 1466 [2017], lv denied 30 NY3d 1106 [2018]; People v Lee, 129 AD3d 1295,1300 [2015], lv denied 27 NY3d 1001 [2016]).
Finally, defendant's pro se claims are without merit, as the actions alleged do not constituteprosecutorial misconduct (see generallyPeople v Hughes, 111 AD3d 1170, 1173 [2013], lv denied 23 NY3d 1038[2014]; People v Serrano, 14 AD3d874, 874 [2005], lv denied 4 NY3d 803 [2005]).
Clark, Mulvey, Devine and Pritzker, JJ., concur. Ordered that the judgment is affirmed.