| People v Cowan |
| 2019 NY Slip Op 53936 [177 AD3d 1173] |
| November 27, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Michael Cowan, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
Palmer J. Pelella, Special Prosecutor, Owego, for respondent.
Garry, P.J. Appeal from a judgment of the County Court of Broome County (CawleyJr., J.), rendered October 3, 2014, upon a verdict convicting defendant of the crimes ofcriminal possession of a controlled substance in the third degree and criminal possessionof a controlled substance in the fourth degree and the violation of unlawful possession ofmarihuana.
In February 2012, a confidential informant (hereinafter CI) told the Broome CountySheriff's Department that defendant and Marcus Jackson were planning to travel togetherby bus from New York City to Broome County to sell cocaine. Members of the BroomeCounty Task Force[FN1]obtained a search warrant, detaineddefendant and Jackson as they were leaving the bus station in the City of Binghamton,Broome County and searched defendant's person. The search revealed that he wascarrying cocaine and marihuana. Defendant was charged with criminal possession of acontrolled substance in the third degree, criminal possession of a controlled substance inthe fourth degree, and unlawful possession of marihuana, a violation.
Defendant moved to suppress the seized evidence and requested a Dardenhearing. After conducting the Darden hearing, County Court denied thesuppression motion, finding that the CI's communications to police officers were in factmade, were reliable, and were sufficient to establish probable cause. Following a jurytrial, defendant was convicted as charged. He was sentenced as a second felony offenderto concurrent prison terms of six years for the convictions of criminal possession of acontrolled substance in the third degree and criminal possession of a controlled substancein the fourth degree, followed by three years of postrelease supervision, and to a one-yearconditional release on the conviction for unlawful possession of marihuana. Defendantappeals.
We reject defendant's contention that probable cause to support issuance of thesearch warrant was lacking because the CI's reliability and basis for knowledge were notproven. Probable cause may be based upon hearsay information obtained from a CI solong as police officers "establish that the [CI] had some basis for the knowledge he [orshe] transmitted to them and that he [or she] was reliable" (People v Bigelow, 66NY2d 417, 423 [1985]; see People v Hetrick, 80 NY2d 344, 348 [1992];People v Bell, 299 AD2d 582, 583 [2002], lv denied 99 NY2d 555[2002]). Here, the warrant application was accompanied by a statement from the CI thatwas "affirmed under penalty of perjury" and submitted for in camera review. Under suchcircumstances, a CI's reliability and the basis of his or her knowledge need not beassessed, as the statement "is in and of itself sufficient to support the issuance of a searchwarrant" (People v David, 234 AD2d 787, 788 [1996], lv denied 89NY2d 1034 [1997]; see People v Hicks, 38 NY2d 90, 93-94 [1975]). As thestatement is not contained within our record, we further note that our in camera review ofthe confidential minutes of the Darden hearing reveals that the CI had providedinformation to police in the past (see People v Rodriguez, 52 NY2d 483, 489[1981]; People v Tyrell, 248 AD2d 747, 748 [1998], lv denied 92 NY2d907 [1998]) and that the information that he provided was based on his firsthandobservations and interactions with defendant—"[t]he most reliable" demonstrationof the basis for a CI's knowledge (People v Bigelow, 66 NY2d at 423; see People v Douglas, 42AD3d 756, 758 [2007], lv denied 9 NY3d 922 [2007]; People vMantia, 299 AD2d 664, 665 [2002], lv denied 99 NY2d 617 [2003]).
We find no merit in defendant's contention that the warrant failed to provide asufficiently particular description of defendant. As defendant argues, the warrantidentified him only with the street name "Slime" and stated a height that was three or fourinches shorter than his true height. However, defendant does not claim that the remainderof the physical description—which described his build, coloring and facialhair—was inaccurate. The warrant further described defendant by his associationwith Jackson, whose full name, date of birth and photograph were provided. The warrantapplication stated that the CI had identified a photograph of Jackson as a person whomhe knew as Mill, that the CI had met Mill and Slime in Binghamton within the past twoweeks and had seen them in possession of crack cocaine, and that both Mill and Slimekept crack cocaine hidden in the zipper area of the front of their pants. "Whileparticularity of a search warrant is certainly required, '[t]his does not mean thathypertechnical accuracy and completeness of description must be attained' " (People v Thomas, 155 AD3d1120, 1121 [2017], lv denied 31 NY3d 1018 [2018], quoting People vNieves, 36 NY2d 396, 401 [1975]). A warrant is sufficiently particular where, ashere, "from the standpoint of common sense, . . . the descriptions in thewarrant and its supporting affidavits [are] sufficiently definite to enable the searcher toidentify the persons, places or things that the [issuing court] has previously determinedshould be searched or seized" (People v Nieves, 36 NY2d at 401 [citationsomitted]).[FN2]
We reject defendant's contention that his convictions are not supported by legallysufficient evidence and are against the weight of the evidence. Specifically, defendantcontends that the People failed to prove beyond a reasonable doubt that he intended tosell the cocaine found in his possession, rather than keeping it for personal use, andfurther failed to prove the weight of the cocaine and that it was not altered while inpolice custody. The testimony of the People's witnesses established that a detective onthe Task Force received information that Jackson and an individual whose street namewas Slime would be coming to Binghamton by bus from New York City to sell cocaine.The detective obtained a warrant to search the persons of Jackson and Slime. At thespecified time, the detective and his partner waited in a location at the bus terminal wherethey could see buses arriving, while other officers were stationed nearby. The detectiveand the partner watched as defendant and Jackson got off the bus together, collected theirbaggage and walked together toward the exit. The partner recognized Jackson basedupon past encounters with him, and defendant's general appearance corresponded withthe warrant's description of Slime. The detective and the partner advised the otherofficers by radio that defendant and Jackson were approaching, identifying them by theirclothing. Defendant and Jackson were arrested as they left the terminal.
At the police station, the detective obtained defendant's full name and advised himthat the detective had a warrant to search his person. Defendant denied "a couple oftimes" that he used the street name Slime. The search of defendant's person disclosedthree cell phones and $304 in cash, as well as a hidden pocket in defendant's pants,located behind a small hole near the zipper, that contained baggies holding substancesthat proved to be cocaine and marihuana.
A captain of the detective division of the Broome County Police Department testifiedthat he participated in the search of defendant and took photographs that were admittedinto evidence of the cocaine found on defendant's person and the hidden pocket in hispants. The captain further identified photographs of two pairs of pants found indefendant's luggage, each of which also had hidden pockets in the zipper area. Thecaptain described his training and experience in narcotics investigations and testifiedthat, in his experience, drug users typically possessed paraphernalia for using drugs andsmall amounts of drugs, often found in their pockets, hands or sometimes in theirmouths. The captain testified that users typically carried only small amounts of drugs andcash because they were likely to use whatever money they had to buy drugs and then usethe drugs soon after purchasing them. Dealers, instead, typically did not carryparaphernalia for the use of drugs, but were likely to possess larger quantities of drugsconcealed on their persons or in hidden compartments in their clothing, as well as one ormore cell phones. Other police witnesses stated that the cocaine found in the hiddenpocket of defendant's pants weighed 9.53 grams and described the processes by whichthe cocaine and marihuana were secured and tested.
Contrary to defendant's argument, County Court did not err in permitting the captainto provide expert testimony about the typical possession of drugs, cash and other itemsby drug dealers and drug users. This information was "beyond the ken of the averagejuror" and helpful to the jury in evaluating the issue of defendant's intent, and the captaindid not opine on the ultimate issue of defendant's guilt or otherwise usurp the jury'sfact-finding function (People vHicks, 2 NY3d 750, 751 [2004]; see People v Casanova, 152 AD3d 875, 878 [2017], lvdenied 30 NY3d 948 [2017]; People v Berry, 5 AD3d 866, 867 [2004], lv denied3 NY3d 637 [2004]; People v Davis, 235 AD2d 941, 943 [1997], lvdenied 89 NY2d 1010 [1997]). The jury was entitled to credit the uncontradictedtestimony of the People's chain of custody witnesses and, as to defendant's claim that thePeople did not prove that the cocaine was not adulterated, "the aggregate weight of acontrolled substance is determined by the weight of the substance which contains thedrug, irrespective of the amount of the drug in the substance" (People vMendoza, 81 NY2d 963, 965 [1993] [internal quotation marks and citation omitted];accord People v Bellamy,118 AD3d 1113, 1115 [2014], lv denied 25 NY3d 1159 [2015]). Viewingthe evidence in the light most favorable to the People, we find that the proof was legallysufficient to support defendant's convictions (see People v Wheeler, 159 AD3d 1138, 1140 [2018], lvdenied 31 NY3d 1123 [2018]; People v Garcia-Toro, 155 AD3d 1086, 1088 [2017], lvdenied 30 NY3d 1115 [2018]; People v Wright, 283 AD2d 712, 714 [2001],lv denied 96 NY2d 926 [2001]). A different verdict would not have beenunreasonable if the jury had credited defendant's arguments that, among other things, hispossession of rolling papers and a lighter at the time of his arrest was inconsistent withthe expert testimony that drug dealers did not typically carry such paraphernalia.Nevertheless, viewing the evidence in a neutral light and deferring to the jury's credibilitydeterminations, we find that defendant's convictions are not against the weight of theevidence (see People vRoulhac, 166 AD3d 1066, 1067-1068 [2018], lv denied 32 NY3d 1128[2018]; People v Wright, 283 AD2d at 714; see generally People v Creech, 165 AD3d 1491, 1492[2018]).
Finally, we reject defendant's argument that he did not receive the effectiveassistance of counsel because his trial counsel failed to call him to testify at trial.Defendant now contends that he could have offered testimony about his allegedsubstance abuse issues to counter the People's assertion that he was a drug dealer ratherthan a user. At trial, however, County Court asked defendant whether he wished to testifyand noted that defense counsel had represented that he and defendant had discussed theissue. Defendant did not disagree, and twice stated that he did not wish to testify. Beyondthat exchange, "we do not know the circumstances under which the decision was madenot to have defendant testify at trial and, therefore, it is outside the scope of this record"(People v Borthwick, 51AD3d 1211, 1216 [2008], lv denied 11 NY3d 734 [2008]; see People v Dozier, 94 AD3d1226, 1228 [2012], lv denied 19 NY3d 996 [2012]). In any event, whether adefendant will testify at trial is an inherently strategic choice, made by the defendant withthe assistance of his or her trial counsel (see People v Borthwick, 51 AD3d at1216). Here, pursuant to a Sandoval compromise, the People would have beenpermitted to cross-examine defendant about a prior felony conviction and a priormisdemeanor if he had testified. As defendant failed to show the absence of a strategicreason for the failure to call him to testify, we find that he was not denied the effectiveassistance of counsel (see People v Dozier, 94 AD3d at 1228; People vColeman, 296 AD2d 766, 768 [2002], lv denied 99 NY2d 534 [2002]).
Mulvey, Devine and Aarons, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:A detective testified thatthe Broome County Task Force is a combined special investigations unit made up ofmembers from several agencies.
Footnote 2:Defendant's relatedargument that the purported deficiencies in the warrant deprived police of probable causeto arrest him is unpreserved for appellate review (see People v Cooley, 149 AD3d 1268, 1271 [2017], lvdenied 30 NY3d 979 [2017]).