Opinion
2013-03-15
The PEOPLE of the State of New York, Respondent, v. Davan DARK, also known as Mike, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant. Davan Dark, Defendant–Appellant Pro Se.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant. Davan Dark, Defendant–Appellant Pro Se.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him after a nonjury trial of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ) and criminal possession of a controlled substance in the third degree (§ 220.16[1] ). Contrary to defendant's contention, we conclude that the evidence, when viewed in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), is legally sufficient to establish his identity as the person who sold crack cocaine to the undercover police officers ( see People v. Brown, 92 A.D.3d 1216, 1216–1217, 937 N.Y.S.2d 803,lv. denied18 N.Y.3d 992, 945 N.Y.S.2d 647, 968 N.E.2d 1003;see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Viewing the evidence in light of the elements of the crimes in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we further conclude that the verdict is not against the weight of the evidence on the issue of identification ( see People v. Young, 74 A.D.3d 1471, 1472, 902 N.Y.S.2d 222,lv. denied15 N.Y.3d 811, 908 N.Y.S.2d 171, 934 N.E.2d 905;see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Moreover, defendant's sentence is not unduly harsh or severe.
Defendant further contends on appeal that he was denied effective assistance of counsel because defense counsel failed to assert an agency defense or timely request a Wade hearing. We conclude with respect to the failure to assert an agency defense that defendant received meaningful representation because “there is no denial of effective assistance based on the failure to ‘make a motion or argument that has little or no chance of success' ” ( People v. Crump, 77 A.D.3d 1335, 1336, 909 N.Y.S.2d 252,lv. denied 16 N.Y.3d 857, 923 N.Y.S.2d 419, 947 N.E.2d 1198, quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883,rearg. denied3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671). Defendant engaged in “[s]alesman-like behavior” by “touting the quality of the product” ( People v. Roche, 45 N.Y.2d 78, 85, 407 N.Y.S.2d 682, 379 N.E.2d 208,cert. denied439 U.S. 958, 99 S.Ct. 359, 58 L.Ed.2d 350), and he lacked a preexisting relationship with the buyers ( see People v. Ortiz, 76 N.Y.2d 446, 449–450, 560 N.Y.S.2d 186, 560 N.E.2d 162,remittitur amended77 N.Y.2d 821, 566 N.Y.S.2d 580, 567 N.E.2d 974;see also People v. Herring, 83 N.Y.2d 780, 782–783, 610 N.Y.S.2d 949, 632 N.E.2d 1272), who were undercover police officers. Thus, there was no basis for defense counsel to assert an agency defense on behalf of defendant. We conclude with respect to the alleged failure to make a timely request for a Wade hearing that the record establishes that defense counsel in fact timely requested a Wade hearing in his omnibus motion and again requested a Wade hearing in his motion for a trial order of dismissal.
Defendant also asserts that there was a Brady violation based on the People's failure to disclose a photograph that was taken by the cell phone camera of an undercover officer, and the failure of the police to preserve the photograph. The record demonstrates, however, both that the People learned at the same time as defendant that the photograph had been taken, and that the photograph was no longer in existence by the time that defendant was arrested. Thus, “the prosecution was not required to impart identifying information unknown to them and not within their possession” ( People v. Hayes, 17 N.Y.3d 46, 52, 926 N.Y.S.2d 382, 950 N.E.2d 118,cert. denied––– U.S. ––––, 132 S.Ct. 844, 181 L.Ed.2d 553). Moreover, inasmuch as “ ‘[t]he exculpatory potential of this evidence [is] purely speculative, its destruction by the police does not violate the Brady rule’ ” ( People v. Smith, 306 A.D.2d 861, 862, 762 N.Y.S.2d 721,lv. denied100 N.Y.2d 599, 766 N.Y.S.2d 175, 798 N.E.2d 359).
Defendant further contends in his pro se supplemental brief that County Court erred in denying his request for a Wade hearing. “There is no indication in the record, however, that the court ruled on the motion; i.e., the court neither granted nor denied it on the record before us” ( People v. Chattley, 89 A.D.3d 1557, 1558, 932 N.Y.S.2d 750). “ ‘CPL 470.15(1) precludes [this Court] from reviewing an issue that was either decided in an appellant's favor or was not decided by the trial court’ ” ( People v. Adams, 96 A.D.3d 1588, 1589, 946 N.Y.S.2d 771, quoting People v. Ingram, 18 N.Y.3d 948, 949, 944 N.Y.S.2d 470, 967 N.E.2d 695), “and thus the court's failure to rule on the motion cannot be deemed a denial thereof” ( Chattley, 89 A.D.3d at 1558, 932 N.Y.S.2d 750). We therefore hold the case, reserve decision and remit the matter to County Court to rule on defendant's request for a Wade hearing with respect to the identification procedures referenced in the People's CPL 710.30 notice.
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Erie County Court for further proceedings.