Opinion
02-21-2017
The PEOPLE of the State of New York, Respondent, v. Timothy MARTIN, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Samuel E. Steinbock–Pratt of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Eleanor J. Ostrow of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Samuel E. Steinbock–Pratt of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Eleanor J. Ostrow of counsel), for respondent.
ACOSTA, J.P., RENWICK, MOSKOWITZ, FEINMAN, GESMER, JJ.
Judgment, Supreme Court, New York County (Melissa C. Jackson, J. at Darden hearing; Richard D. Carruthers, J. at pretrial proceedings, jury trial and sentencing), rendered November 10, 2014, convicting defendant of criminal possession of a controlled substance in the third and fifth degrees and two counts of criminally using drug paraphernalia in the second degree, and sentencing him, as a second felony drug offender, to an aggregate term of two years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations. There was ample evidence to connect defendant with the contraband found.
When defendant requested unspecified "paperwork" concerning an unrelated search warrant executed by the same team of officers on the day they executed the warrant that led to defendant's arrest, this request was insufficient to alert the court to defendant's present claim that he was entitled to these documents as Rosario material (People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 [1961], cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64 [1961] ). We decline to review this unpreserved claim in the interest of justice. As an alternative holding, we reject it on the merits. Assuming that the undisclosed materials included any statements by a witness who testified at defendant's trial, there is nothing to indicate that these statements concerning the other search warrant would have "relate[d] to the subject matter of the witness's testimony" (CPL 240.45 [1 ]; People v. Mack, 100 A.D.3d 460, 953 N.Y.S.2d 583 [1st Dept.2012], lv. denied 20 N.Y.3d 1012, 960 N.Y.S.2d 356, 984 N.E.2d 331 [2013] ).
Neither Miranda warnings nor CPL 710.30(1)(a) notice was required with respect to defendant's statement, in response to a detective's pedigree question, that his residence was the apartment where the police had executed a search warrant and discovered contraband. The detective's routine administrative questioning was not designed to elicit an incriminating response (see Pennsylvania v. Muniz, 496 U.S. 582, 601–602, 110 S.Ct. 2638, 110 L.Ed.2d 528 [1990] ; People v. Rodney, 85 N.Y.2d 289, 292–294, 624 N.Y.S.2d 95, 648 N.E.2d 471 [1995] ; People v. Watts, 309 A.D.2d 628, 766 N.Y.S.2d 22 [1st Dept.2003], lv. denied 1 N.Y.3d 582, 775 N.Y.S.2d 798, 807 N.E.2d 911 [2003] ), even if the answer was reasonably likely to be incriminating (see People v. Alleyne, 34 A.D.3d 367, 828 N.Y.S.2d 2 [1st Dept.2006], lv. denied 8 N.Y.3d 918, 834 N.Y.S.2d 509, 866 N.E.2d 455 [2007], cert. denied 552 U.S. 878, 128 S.Ct. 192, 169 L.Ed.2d 130 [2007] ).
The court did not delegate control of a portion of jury selection to a court officer, and there was no mode of proceedings error. When the officer reported to the court and parties that a prospective juror was pacing in the hallway and making rambling, belligerent remarks, the court, without objection, directed that the panelist be excused. The officer did not perform any judicial function, but "simply supplied information upon which the court made its own determination" (People v. Singletary, 66 A.D.3d 564, 566, 887 N.Y.S.2d 86 [1st Dept.2009], lv. denied 13 N.Y.3d 941, 895 N.Y.S.2d 332, 922 N.E.2d 921 [2010] ) that the panelist was unqualified to serve, and the circumstances did not require a direct colloquy between the panelist and the court.
Based on our review of the minutes of the hearing conducted pursuant to People v. Darden , 34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49 (1974), we find that there was probable cause for the issuance of the search warrant.