Opinion
1102 KA 15–01730
03-15-2019
The PEOPLE of the State of New York, Respondent, v. Anquawn LINDER, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that said appeal from the judgment insofar as it imposed sentence is unanimously dismissed and the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16[12] ). The conviction arises out of a police-executed traffic stop during which defendant handed a bag containing a "softball"-sized amount of crack cocaine to an accomplice, who then secreted the contraband between his buttocks. We now affirm.
Defendant first challenges the legal sufficiency and weight of the evidence underlying his conviction, arguing that the accomplice's testimony was insufficiently corroborated and that the People therefore failed to establish that defendant possessed the drugs recovered from the accomplice's buttocks. At trial, the accomplice testified that defendant possessed the drugs on his person before the traffic stop and that, shortly after the car was pulled over, defendant used his right arm to pass the bag of drugs to the accomplice. The accomplice testified that he then immediately stuffed the bag of drugs between his buttocks to avoid detection. The accomplice's testimony was corroborated by the testimony of a police officer who witnessed defendant reach over toward the accomplice with his right hand and who, seconds later, saw the accomplice's hand emerge from the back of his pants.
Contrary to defendant's contention, the officer's testimony satisfies the corroboration requirement of CPL 60.22 because it " ‘tends to connect ... defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth’ " ( People v. Reome, 15 N.Y.3d 188, 192, 906 N.Y.S.2d 788, 933 N.E.2d 186 [2010] ; see People v. Davis, 28 N.Y.3d 294, 303, 44 N.Y.S.3d 358, 66 N.E.3d 1076 [2016] ; People v. Philbert, 270 A.D.2d 210, 210, 707 N.Y.S.2d 14 [1st Dept. 2000], lv denied 95 N.Y.2d 856, 714 N.Y.S.2d 7, 736 N.E.2d 868 [2000] ; see also People v. Young, 48 A.D.3d 901, 903, 851 N.Y.S.2d 714 [3d Dept. 2008] ; People v. Arrington, 31 A.D.3d 801, 803, 817 N.Y.S.2d 755 [3d Dept. 2006], lv denied 7 N.Y.3d 865, 824 N.Y.S.2d 610, 857 N.E.2d 1141 [2006] ; cf. People v. Johnson, 1 A.D.3d 891, 892–893, 767 N.Y.S.2d 548 [4th Dept. 2003] ). Notably, " ‘[t]he role of the additional evidence is only to connect the defendant with the commission of the crime, not to prove that he committed it’ " ( Reome, 15 N.Y.3d at 192, 906 N.Y.S.2d 788, 933 N.E.2d 186 ). We thus conclude that there is legally sufficient evidence to establish defendant's possession of the subject cocaine (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; People v. Nichols, 163 A.D.3d 39, 49, 78 N.Y.S.3d 590 [4th Dept. 2018] ). Moreover, upon our independent review of the evidence in light of the elements of the crime 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 have no reasonable doubt that defendant possessed the drugs at issue (see e.g. People v. La Porte, 217 A.D.2d 821, 821–822, 629 N.Y.S.2d 832 [3d Dept. 1995] ). As such, the verdict is not against the weight of the evidence (see generally People v. Sanchez, 32 N.Y.3d 1021, 1023, 87 N.Y.S.3d 135, 112 N.E.3d 312 [2018] ; People v. Kancharla, 23 N.Y.3d 294, 302–303, 991 N.Y.S.2d 1, 14 N.E.3d 354 [2014] ).
Defendant next contends that the superceding indictment should be dismissed because the People violated his right to testify at the superceding grand jury presentation (see generally CPL 190.50[5] ). Defendant waived that contention, however, "by failing to move to dismiss the [superceding] indictment on that ground within five days after he was arraigned" ( People v. Roach, 1 A.D.3d 963, 964, 767 N.Y.S.2d 326 [4th Dept. 2003] [emphasis added], lv denied 1 N.Y.3d 579, 775 N.Y.S.2d 795, 807 N.E.2d 908 [2003], reconsideration denied 1 N.Y.3d 633, 777 N.Y.S.2d 32, 808 N.E.2d 1291 [2004], cert denied 543 U.S. 853, 125 S.Ct. 298, 160 L.Ed.2d 87 [2004] ; see CPL 190.50[5][c] ; People v. Osborne, 88 A.D.3d 1284, 1286, 930 N.Y.S.2d 367 [4th Dept. 2011], lv denied 19 N.Y.3d 999, 951 N.Y.S.2d 476, 975 N.E.2d 922 [2012], reconsideration denied 19 N.Y.3d 1104, 955 N.Y.S.2d 560, 979 N.E.2d 821 [2012] ).
In any event, the record establishes that defendant's right to testify was not violated. A person's right to testify before the grand jury on his or her own behalf is explicitly conditioned upon serving the "district attorney" with a "written notice" of intent to testify ( CPL 190.50[5][a] ). "The requirements of CPL 190.50 are to be strictly enforced" ( People v. Kirk, 96 A.D.3d 1354, 1359, 945 N.Y.S.2d 818 [4th Dept. 2012], lv denied 20 N.Y.3d 1012, 960 N.Y.S.2d 355, 984 N.E.2d 330 [2013] [internal quotation marks omitted]; see People v. Lawrence, 64 N.Y.2d 200, 206–207, 485 N.Y.S.2d 233, 474 N.E.2d 593 [1984] ). Here, although defendant sent a letter to the trial judge asking to testify before the grand jury and later orally reiterated that desire in open court, it is undisputed that defendant never "serve[d] upon the district attorney ... a written notice" of his intent to testify as required by CPL 190.50(5)(a) (emphasis added). Defendant thus failed to effectively invoke his statutory right to testify before the grand jury (see People v. Saldana, 161 A.D.2d 441, 444, 556 N.Y.S.2d 534 [1st Dept. 1990], lv denied 76 N.Y.2d 944, 563 N.Y.S.2d 73, 564 N.E.2d 683 [1990] ). "In the absence of an effective request to testify, the People were entitled to resubmit the charges without notice to defendant" and without affording him an opportunity to testify ( People v. Nix, 265 A.D.2d 891, 891, 696 N.Y.S.2d 326 [4th Dept. 1999] ; cf. People v. Greco, 230 A.D.2d 23, 27–28, 654 N.Y.S.2d 890 [4th Dept. 1997], lv denied 90 N.Y.2d 858, 661 N.Y.S.2d 185, 683 N.E.2d 1059 [1997], reconsideration denied 90 N.Y.2d 940, 664 N.Y.S.2d 758, 687 N.E.2d 655 [1997] ). Contrary to defendant's assertion, the People were not obligated to preemptively notify him of the superceding grand jury proceeding because, at that time, there was no "currently undisposed of felony complaint charging an offense which is a subject of the prospective or pending [superceding] grand jury proceeding" ( CPL 190.50[5][a] ; see People v. Lunney, 84 Misc.2d 1090, 1095–1096, 378 N.Y.S.2d 559 [Sup. Ct., New York County 1975] ; see also People v. Washington, 42 A.D.2d 677, 677, 344 N.Y.S.2d 116 [4th Dept. 1973] ; see generally People v. Franco, 86 N.Y.2d 493, 499–500, 634 N.Y.S.2d 38, 657 N.E.2d 1321 [1995] ). There was thus no basis to dismiss the superceding indictment pursuant to CPL 190.50(5) (see People v. Ponce, 276 A.D.2d 921, 921–922, 714 N.Y.S.2d 592 [3d Dept. 2000], lv denied 96 N.Y.2d 786, 725 N.Y.S.2d 651, 749 N.E.2d 220 [2001] ). Defendant next contends that the prosecutor committed a Batson violation by peremptorily striking prospective juror 17, a black female. The prosecutor offered three undisputedly race-neutral reasons for striking the subject venireperson: (1) she was "not very forthcoming in her answers"; (2) she was "kind of quiet"; and (3) she was employed as a nursing assistant. County Court rejected defendant's Batson challenge, finding that the prosecutor's rationale for striking the subject venireperson was not pretextual. Initially, by failing to controvert the first and third race-neutral reasons offered by the prosecutor, defendant's claims of pretext as to those reasons are unpreserved for appellate review (see People v. Rubin, 143 A.D.3d 846, 846, 39 N.Y.S.3d 74 [2d Dept. 2016], lv denied 28 N.Y.3d 1126, 51 N.Y.S.3d 23, 73 N.E.3d 363 [2016] ; People v. Knowles, 79 A.D.3d 16, 21, 911 N.Y.S.2d 483 [3d Dept. 2010], lv denied 16 N.Y.3d 896, 926 N.Y.S.2d 32, 949 N.E.2d 980 [2011] ; People v. Holloway, 71 A.D.3d 1486, 1486–1487, 897 N.Y.S.2d 373 [4th Dept. 2010], lv denied 15 N.Y.3d 774, 907 N.Y.S.2d 463, 933 N.E.2d 1056 [2010] ).
In any event, a "trial court's determination whether a proffered race-neutral reason is pretextual is accorded ‘great deference’ on appeal" ( People v. Hecker, 15 N.Y.3d 625, 656, 917 N.Y.S.2d 39, 942 N.E.2d 248 [2010] ), and we see no reason to disturb the court's determination that the prosecutor's explanations in this case were not pretextual (see e.g. People v. English, 119 A.D.3d 706, 706, 988 N.Y.S.2d 697 [2d Dept. 2014], lv denied 24 N.Y.3d 1043, 998 N.Y.S.2d 313, 23 N.E.3d 156 [2014] ; Holloway, 71 A.D.3d at 1486–1487, 897 N.Y.S.2d 373 ). Defendant's insistence that the prosecutor was obligated to link the venireperson's occupation with an "issue in the case" reflects a fundamental misapprehension of the Batson framework; indeed, it is well established that prosecutors are "not required to ‘show that the peremptory challenge was specifically related to the facts of the case’ " ( Hecker, 15 N.Y.3d at 664, 917 N.Y.S.2d 39, 942 N.E.2d 248 [emphasis added]; see People v. Toliver, 102 A.D.3d 411, 411, 958 N.Y.S.2d 95 [1st Dept. 2013], lv denied 21 N.Y.3d 1011, 971 N.Y.S.2d 262, 993 N.E.2d 1286 [2013], reconsideration denied 21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151 [2013] ). Nor need the prosecutor's race-neutral reasons " ‘rise to the level of a challenge for cause’ " in order to survive Batson 's step-three inquiry into pretextuality ( People v. James, 99 N.Y.2d 264, 270, 755 N.Y.S.2d 43, 784 N.E.2d 1152 [2002], quoting People v. Allen, 86 N.Y.2d 101, 106, 629 N.Y.S.2d 1003, 653 N.E.2d 1173 [1995] ), and "there is no authority [holding] that a proffered race-neutral reason for seeking the peremptory strike of a prospective juror, while actually non-pretextual, was so insignificant as to be the equivalent of pretext" ( People v. Sprague, 280 A.D.2d 954, 955, 721 N.Y.S.2d 205 [4th Dept. 2001] ). The court therefore properly denied defendant's Batson challenge.
Defendant next contends that defense counsel rendered ineffective assistance at trial. First, defendant faults his attorney for failing to request a missing witness charge for a confidential informant who allegedly set up the drug deal to which defendant and the accomplice were driving when they were stopped by police. We reject that contention. Had defense counsel sought such a charge, the prosecutor might have responded by moving to reopen his case in order to call the informant to the stand (see e.g. People v. Miller, 259 A.D.2d 1031, 1031, 689 N.Y.S.2d 886 [4th Dept. 1999], lv denied 93 N.Y.2d 927, 693 N.Y.S.2d 510, 715 N.E.2d 513 [1999] ; People v. Parilla, 158 A.D.2d 556, 557, 551 N.Y.S.2d 326 [2d Dept. 1990] ). Such testimony could have undermined defendant's case and might have even resulted in his conviction on certain counts of which he was acquitted. We thus perceive a valid strategic basis for counsel's failure to request a missing witness instruction (see People v. Peake, 14 A.D.3d 936, 937–938, 788 N.Y.S.2d 501 [3d Dept. 2005] ; People v. Cruz, 165 A.D.2d 205, 207–208, 566 N.Y.S.2d 608 [1st Dept. 1991], lv denied 77 N.Y.2d 959, 570 N.Y.S.2d 493, 573 N.E.2d 581 [1991] ; cf. People v. Davydov, 144 A.D.3d 1170, 1173, 43 N.Y.S.3d 74 [2d Dept. 2016], lv denied 29 N.Y.3d 996, 57 N.Y.S.3d 718, 80 N.E.3d 411 [2017] ; see generally People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ). Moreover, any testimony by the informant would have pertained only to the counts upon which defendant was acquitted. Thus, defendant suffered no prejudice from the absence of a missing witness instruction under these circumstances (see People v. Spallone, 150 A.D.3d 556, 557, 55 N.Y.S.3d 198 [1st Dept. 2017], lv denied 29 N.Y.3d 1134, 64 N.Y.S.3d 684, 86 N.E.3d 576 [2017] ; People v. Neil, 289 A.D.2d 611, 613, 733 N.Y.S.2d 528 [3d Dept. 2001], lv denied 97 N.Y.2d 758, 742 N.Y.S.2d 619, 769 N.E.2d 365 [2002] ).
Defendant's second claim of ineffectiveness centers on defense counsel's failure to exploit what defendant characterizes as a discrepancy between the police officer's trial testimony and suppression hearing testimony. At trial, the officer testified that, while questioning the accomplice, he told the accomplice that he had seen defendant give the accomplice the bag of drugs during the traffic stop. At the suppression hearing, the officer testified that he had not actually seen what, if anything, defendant handed the accomplice during the stop. There is nothing contradictory about these respective accounts, however. The officer never claimed at trial to have actually seen what, if anything, defendant handed to the accomplice; rather, the officer merely testified to using an interrogatory ruse with the accomplice in order to secure a confession. Thus, the officer's trial testimony about the interrogatory ruse was not inconsistent with his suppression hearing testimony about his actual observations during the stop. "Since the purported inconsistency was illusory, trial counsel was not deficient in failing to exploit it on cross-examination" ( People v. Lewis, 139 A.D.3d 571, 572, 31 N.Y.S.3d 502 [1st Dept. 2016], lv denied 28 N.Y.3d 932, 40 N.Y.S.3d 361, 63 N.E.3d 81 [2016], reconsideration denied 28 N.Y.3d 1029, 45 N.Y.S.3d 380, 68 N.E.3d 109 [2016] ; see People v. Casey, 149 A.D.3d 771, 772, 50 N.Y.S.3d 528 [2d Dept. 2017], lv denied 29 N.Y.3d 1077, 64 N.Y.S.3d 166, 86 N.E.3d 253 [2017] ). Third, defendant argues that defense counsel was ineffective for failing to challenge two alleged instances of prosecutorial misconduct. Again, we reject that contention. With respect to the first alleged instance of prosecutorial misconduct, it is well established that a "defendant is not denied effective assistance of trial counsel merely because counsel does not make a motion or argument that has little or no chance of success" ( People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004], rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 [2004] ), and here, any challenge to the evidence of, or to the prosecutor's summation references to, the multiple cell phones discovered during the traffic stop would have been unavailing (see e.g. People v. Cartagena, 9 A.D.3d 468, 468, 780 N.Y.S.2d 288 [2d Dept. 2004], lv denied 3 N.Y.3d 672, 784 N.Y.S.2d 10, 817 N.E.2d 828 [2004] ; People v. Grajales, 294 A.D.2d 657, 658, 742 N.Y.S.2d 687 [3d Dept. 2002], lv denied 98 N.Y.2d 697, 747 N.Y.S.2d 415, 776 N.E.2d 4 [2002] ; see also People v. Porter, 153 A.D.3d 857, 857, 61 N.Y.S.3d 99 [2d Dept. 2017], lv denied 30 N.Y.3d 1022, 70 N.Y.S.3d 454, 93 N.E.3d 1218 [2017] ). With respect to the second alleged instance of prosecutorial misconduct, any impropriety in the prosecutor's summation remark that the officers "weren't expecting to find drugs or anything in the[ car]" was not sufficiently egregious to deprive defendant of a fair trial; as such, it cannot be said that defense counsel was ineffective for failing to object to that comment (see People v. Grant, 160 A.D.3d 1406, 1407, 76 N.Y.S.3d 326 [4th Dept. 2018], lv denied 31 N.Y.3d 1148, 83 N.Y.S.3d 430, 108 N.E.3d 504 [2018] ).
Fourth, because—as explained above—defendant had no viable grounds for securing the dismissal of the superceding indictment pursuant to CPL 190.50(5), defense counsel's failure to seek the indictment's dismissal on that basis was not ineffective (see People v. Rotger, 129 A.D.3d 1330, 1332, 11 N.Y.S.3d 734 [3d Dept. 2015], lv denied 26 N.Y.3d 1011, 20 N.Y.S.3d 551, 42 N.E.3d 221 [2015], 27 N.Y.3d 1005, 38 N.Y.S.3d 114, 59 N.E.3d 1226 [2016] ; People v. Caban, 89 A.D.3d 1321, 1322–1323, 932 N.Y.S.2d 923 [3d Dept. 2011] ). To the extent that defendant also contends that counsel was ineffective for failing to serve a proper cross grand jury notice prior to the superceding presentation, that contention lacks merit (see People v. Simmons, 10 N.Y.3d 946, 949, 862 N.Y.S.2d 852, 893 N.E.2d 130 [2008] ).
Given defendant's resentencing, we do not consider his challenge to the severity of his original sentence, and we dismiss the appeal from the judgment to that extent (see People v. Robinson, 151 A.D.3d 1851, 1852, 58 N.Y.S.3d 780 [4th Dept. 2017], lv denied 29 N.Y.3d 1133, 64 N.Y.S.3d 683, 86 N.E.3d 575 [2017] ; People v. Dean, 41 A.D.3d 495, 495, 837 N.Y.S.2d 714 [2d Dept. 2007], lv denied 9 N.Y.3d 1005, 850 N.Y.S.2d 393, 880 N.E.2d 879 [2007] ). The resentence itself is not before us because defendant did not appeal therefrom (see People v. Kuras, 49 A.D.3d 1196, 1197, 852 N.Y.S.2d 907 [4th Dept. 2008], lv denied 10 N.Y.3d 866, 860 N.Y.S.2d 492, 890 N.E.2d 255 [2008] ; cf. Dean, 41 A.D.3d at 495–496, 837 N.Y.S.2d 714 ). Defendant's remaining contention is unpreserved for appellate review, and we decline to exercise our power to address it as a matter of discretion in the interest of justice (see People v. Cullen, 110 A.D.3d 1474, 1475, 972 N.Y.S.2d 792 [4th Dept. 2013], affd 24 N.Y.3d 1014, 997 N.Y.S.2d 348, 21 N.E.3d 1009 [2014] ; see generally CPL 470.15[6][a] ).