| People v Linear |
| 2021 NY Slip Op 07584 [200 AD3d 1498] |
| December 30, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Naeem Linear, Also Known as Nos,Appellant. |
Aaron A. Louridas, Delmar, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.),rendered September 26, 2016, convicting defendant upon his plea of guilty of the crime ofcriminal sale of a controlled substance in the third degree (four counts), criminal possession of acontrolled substance in the third degree (four counts) and conspiracy in the fourth degree (fourcounts).
In October 2015, defendant was charged by indictment with two counts of criminal sale of acontrolled substance in the third degree, two counts of criminal possession of a controlledsubstance in the third degree and two counts of conspiracy in the fourth degree. These chargeswere the result of an investigation that identified defendant in relation to two separate drugtransactions, on April 14, 2015 and April 15, 2015. Subsequently, in December 2015, defendantwas indicted on identical charges—two counts of criminal sale of a controlled substance inthe third degree, two counts of criminal possession of a controlled substance in the third degreeand two counts of conspiracy in the fourth degree—for additional drug transactions onMarch 24, 2015 and "between March 25, 2015 to March 26, 2015." Separate Wadehearings were held on each indictment, after which County Court denied defendant's request tosuppress the identifications. Subsequently, the two indictments were consolidated for trial uponconsent of the parties. Thereafter, on the day trial was set to commence, defendant entered intoan agreement and pleaded guilty to all 12 counts and purportedly waived his right to appeal.Thereafter, defendant was sentenced, as a second felony offender, to concurrent prison terms ofeight years, to be followed by three years of postrelease supervision, for each of his sale andpossession convictions and to lesser concurrent prison terms related to his conspiracyconvictions. Defendant appeals.
Initially, we agree with defendant that his appeal waiver was invalid inasmuch as language inthe written waiver of appeal is "overbroad and inaccurate with regard to the scope of [the]waiver[ ]" (People v Jones, 199AD3d 1069, 1070 [2021]), and County Court's brief oral colloquy did not cure these defects(People v Mayo, 195 AD3d1313, 1314 [2021]). In light of the invalid appeal waiver, defendant's remaining challengesare not precluded. However, defendant's assertion regarding the voluntariness and/or factualsufficiency of his plea is unpreserved for our review because defendant did not make anappropriate postallocution motion (seePeople v Brown, 191 AD3d 1047, 1048 [2021]; People v Brito, 184 AD3d 900, 901 [2020]). "Further, as defendantdid not make any statements during the plea colloquy that were inconsistent with his guilt,negated an element of the charged crime[s] or otherwise called into question the voluntariness ofhis plea, the narrow exception to the preservation requirement does not apply" (People vBrito, 184 AD3d at 901, citing People v Schmidt[*2],179 AD3d 1384, 1385 [2020]). Defendant's ineffective assistance of counsel argument is alsounpreserved for his failure to make an appropriate postallocution motion (see People v Thompson, 193 AD3d1186, 1187 [2021]). In any event, counsel's alleged inadequacies involve matters outside ofthe record that are more appropriate for a CPL article 440 motion (see id.).
Defendant also contends that County Court erred in failing to suppress pretrial identificationof defendant from two photo arrays as they were unduly suggestive. "A photo array is undulysuggestive if some feature or characteristic of one of the depicted individuals or photographs isso unique or distinctive that it draws the viewer's attention to that photograph, thereby indicatingthat the police have selected that particular individual. Although it is not required that theindividuals in a photo array be nearly identical to the defendant, their characteristics must besufficiently similar to those of the defendant so as to not create a substantial likelihood that thedefendant would be singled out for identification" (People v Bowman, 194 AD3d 1123, 1126 [2021] [internalquotation marks and citations omitted], lv denied 37 NY3d 963 [2021]; see People v Winters, 196 AD3d847, 849 [2021], lv denied 37 NY3d 1030 [2021]).
At the first Wade hearing, related to the first indictment, Charles Scott, a detectivewith the Plattsburgh Police Department testified that he was contacted by Christopher Maggy,another detective with the same police department, who requested that Scott compose a photoarray with defendant's photograph. Scott then looked for individuals within five years older andyounger of the same gender and race as defendant. Scott individually examined thesephotographs for individuals with "similar characteristics" as defendant, including hair length,facial hair and skin tone. When constructing this array, Scott ensured that the photographs wereapproximately the same size with similar backgrounds. Maggy testified regarding theconfidential informant's subsequent identification of defendant using the array. Maggy confirmedthat the photographs were approximately the same size and with the same background, and allwere male individuals of the same race. Maggy testified that, with the exception of defendantwho is bald, all of the individuals in the photographs had either receding or short hair and all ofthe individuals, including defendant, had some form of facial hair. The array in question wasadmitted at this hearing. County Court, denying defendant's motion, indicated that defendant'sassertion that the array was unduly suggestive because he was the only individual with a baldhead was "unavailing." The court noted that "[o]ne of the other individuals appears almostcompletely bald and the others have closely-cropped hair" and all had similar facial hair.
At the other Wade hearing related to the second indictment, Michael Madore, a StatePolice [*3]investigator, testified that he was asked by TimConnolly, another State Police investigator, to construct a photo array using defendant'sphotograph. Madore then searched the database for individuals of the same gender and race witha date of birth within one year of defendant's, and then searched the resulting photographs forthose of a similar nature, including "hair style, . . . ears, nose, eyes [and] facialcharacteristics." Connolly testified that he showed the confidential informant the array inquestion and the confidential informant identified defendant. Connolly verified that all of theindividuals in the photo array had the same type of facial hair with either a shaved head or shorthair. Moreover, Connolly confirmed that the photographs were the same size with the samebackground. This array was admitted as an exhibit at the hearing. County Court issued a writtendecision thereafter denying defendant's motion to suppress the identification finding that "there[was] nothing in the photo array that created any likelihood that defendant would be singledout."
Our review of the photo arrays confirms County Court's findings, to which we accord greatdeference (see People v Hawkins,167 AD3d 1071, 1073 [2018]). As to defendant's specific arguments regarding certainaspects of the photo arrays, we find these to be unpersuasive given that there is no requirementthat all individuals must have the exact same hairstyle or the same dress, but rather, theindividual's characteristics "must be sufficiently similar" to find that defendant would not besingled out (People v Bowman, 194 AD3d at 1126 [internal quotation marks and citationsomitted]). As such, we are satisfied that neither of these photo arrays was unduly suggestive;thus, County Court properly denied defendant's motion to suppress (see People v Serrano, 173 AD3d1484, 1487 [2019], lv denied 34 NY3d 937 [2019]; People v Marryshow, 162 AD3d1313, 1315 [2018]).
Finally, we reject defendant's claim that the sentence imposed, which was less than theagreed-upon "sentencing cap," was harsh and excessive. Given that defendant pleaded guilty tocharges involving four separate drug sales, all of which could have resulted in consecutivesentences (see e.g. People v Taylor,126 AD3d 1120, 1122 [2015], lv denied 25 NY3d 1172 [2015], cert denied577 US 1148 [2016]), and given defendant's lengthy criminal history, we discern noextraordinary circumstances or abuse of discretion warranting a reduction of the sentence (see People v Hyson, 197 AD3d1439, 1439-1440 [2021]; People vSimpson, 196 AD3d 996, 999 [2021], lv denied 37 NY3d 1029 [2021]).
Garry, P.J., Lynch, Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that the judgment isaffirmed.