Opinion
1431 KA 15–01407
05-03-2019
The PEOPLE of the State of New York, Respondent, v. Veline HICKS, Defendant–appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT–APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of, inter alia, criminal possession of a controlled substance (CPCS) in the third degree ( Penal Law § 220.16[1] ) and reckless endangerment in the second degree (§ 120.20). We reject defendant's contention that Supreme Court erred in denying his pro se motion to dismiss the indictment on the ground that the People failed to provide him with reasonable notice of the grand jury proceedings (see CPL 190.50[5][a], [c] ). A defendant does not have to be given "a specific time period for notice; rather, ‘reasonable time’ must be accorded to allow a defendant an opportunity to consult with [defense] counsel and decide whether to testify before a[g]rand [j]ury" ( People v. Sawyer, 96 N.Y.2d 815, 816, 727 N.Y.S.2d 381, 751 N.E.2d 460 [2001] ; see People v. Gelling, 163 A.D.3d 1489, 1491, 82 N.Y.S.3d 679 [4th Dept. 2018], amended on rearg 164 A.D.3d 1673, 82 N.Y.S.3d 759 [4th Dept. 2018], lv denied 32 N.Y.3d 1003, 86 N.Y.S.3d 762, 111 N.E.3d 1118 [2018] ). Here, the record establishes that the People gave defendant and his attorney 23 hours' notice that the matter was to be presented to the grand jury, which, under the specific circumstances of this case, constituted reasonable notice (see Gelling, 163 A.D.3d at 1491, 82 N.Y.S.3d 679 ). Moreover, inasmuch as the indictment was not filed until approximately two months later and during that time " ‘neither defendant nor defense counsel notified the People that defendant intended to testify before the grand jury,’ " we conclude that " ‘defendant was not deprived of the right to testify’ " ( id. ).
Defendant's contention that a police sergeant's testimony about defendant's intent to sell cocaine improperly usurped the jury's fact-finding role is unpreserved (see People v. Pierre, 37 A.D.3d 1172, 1173, 829 N.Y.S.2d 386 [4th Dept. 2007], lv denied 8 N.Y.3d 989, 838 N.Y.S.2d 492, 869 N.E.2d 668 [2007] ). In any event, any error in permitting the police sergeant to testify to the effect that defendant " ‘possessed [the cocaine] with the intent to sell’ it" ( People v. Brown, 52 A.D.3d 1175, 1177, 859 N.Y.S.2d 839 [4th Dept. 2008], lv. denied 11 N.Y.3d 923, 874 N.Y.S.2d 8, 902 N.E.2d 442 [2009] ) was harmless (see People v. Salaam, 46 A.D.3d 1130, 1131–1132, 848 N.Y.S.2d 395 [3d Dept. 2007], lv denied 10 N.Y.3d 816, 857 N.Y.S.2d 49, 886 N.E.2d 814 [2008] ; People v. Hartzog, 15 A.D.3d 866, 867, 789 N.Y.S.2d 391 [4th Dept. 2005], lv denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679 [2005] ; People v. Wright, 283 A.D.2d 712, 713–714, 725 N.Y.S.2d 711 [3d Dept. 2001], lv denied 96 N.Y.2d 926, 732 N.Y.S.2d 644, 758 N.E.2d 670 [2001] ).
Defendant's contention that the evidence is legally insufficient with respect to his conviction of CPCS in the third degree and reckless endangerment in the second degree is also unpreserved (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). Furthermore, viewing the evidence in light of the elements of those crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Contrary to defendant's contention concerning CPCS in the third degree, the weight of the evidence, including the testimony establishing that defendant possessed a "bulk amount" of unpackaged cocaine and six knotted plastic bags filled with less than one gram of cocaine each, consistent with street-level sales, supports the jury's conclusion that defendant intended to sell narcotic drugs in his possession (see People v. Bell, 296 A.D.2d 836, 837, 745 N.Y.S.2d 359 [4th Dept. 2002], lv denied 98 N.Y.2d 766, 752 N.Y.S.2d 6, 781 N.E.2d 918 [2002] ; People v. Belo, 240 A.D.2d 964, 966, 659 N.Y.S.2d 910 [3d Dept. 1997], lv denied 91 N.Y.2d 869, 668 N.Y.S.2d 567, 691 N.E.2d 639 [1997] ; see also People v. Smith, 217 A.D.2d 910, 910, 629 N.Y.S.2d 922 [4th Dept. 1995] ). Additionally, contrary to defendant's contention concerning reckless endangerment in the second degree, the weight of the evidence supports the jury's conclusion that defendant recklessly engaged in conduct that created a substantial risk of serious physical injury inasmuch as he led police on a high-speed chase through a residential neighborhood and, in so doing, traveled at more than twice the speed limit on the wrong side of the street, ignored stop signs, and almost struck two moving vehicles and two parked cars (see generally People v. Jackson, 126 A.D.3d 1508, 1511, 8 N.Y.S.3d 505 [4th Dept. 2015] ; People v. Lostumbo, 107 A.D.3d 1395, 1396, 967 N.Y.S.2d 293 [4th Dept. 2013] ).
Finally, we conclude that the sentence is not unduly harsh or severe.