Opinion
2012-11-14
The PEOPLE, etc., respondent, v. Sosan AZIZIANDAVIDI, appellant.
Lynn W.L. Fahey, New York, N.Y. (Reyna E. Marder of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, Brooke E. Barnes, and Rona Kugler of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Reyna E. Marder of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, Brooke E. Barnes, and Rona Kugler of counsel), for respondent.
RANDALL T. ENG, P.J., ANITA R. FLORIO, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered October 30, 2009, convicting her of criminal possession of a controlled substance in the first degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the Supreme Court erred in permitting the People to elicit testimony that the narcotics found in the lining of the suitcases she was carrying could be converted into heroin is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Torres, 96 A.D.3d 881, 946 N.Y.S.2d 225;People v. Jones, 9 A.D.3d 374, 375, 779 N.Y.S.2d 583). However, we reach the issue pursuant to our interest of justice jurisdiction. Although evidence is relevant if it tends to prove the existence or nonexistence of a material fact, not all relevant evidence is admissible ( see People v. Primo, 96 N.Y.2d 351, 355, 728 N.Y.S.2d 735, 753 N.E.2d 164). A court has the discretion to exclude relevant evidence if its probative value is outweighed by risks such as “undue prejudice to the opposing party, confusing the issues or misleading the jury” ( id. at 355, 728 N.Y.S.2d 735, 753 N.E.2d 164). “Evidence ‘of merely slight, remote or conjectural significance’ will ordinarily be insufficiently probative to outweigh these countervailing risks” ( id. at 355–356, 728 N.Y.S.2d 735, 753 N.E.2d 164, quoting People v. Feldman, 299 N.Y. 153, 169–170, 85 N.E.2d 913). Contrary to the People's contention, the testimony that the 32 pounds of narcotics found in the suitcases could be converted into heroin, as well as the additional testimony that the street value of the narcotics would be approximately $4.5 million if so converted, was of insufficientprobative significance in proving the elements of knowing possession ( seePenal Law § 220.21[1] ) and intent to sell ( seePenal Law § 220.16[1] ) to outweigh the prejudicial impact of the admission of this evidence to the defendant ( People v. Primo, 96 N.Y.2d 351, 355, 728 N.Y.S.2d 735, 753 N.E.2d 164;see People v. Figueroa, 211 A.D.2d 811, 622 N.Y.S.2d 87;People v. Jones, 201 A.D.2d 505, 609 N.Y.S.2d 796;People v. Rodriguez, 184 A.D.2d 795, 585 N.Y.S.2d 505;People v. Stevenson, 179 A.D.2d 832, 579 N.Y.S.2d 160). The prosecutor's reference to such evidence during summation was improper as well ( see People v. Tucker, 87 A.D.3d 1077, 1081, 929 N.Y.S.2d 631;People v. Wilkinson, 71 A.D.3d 249, 257, 892 N.Y.S.2d 535;People v. Figueroa, 211 A.D.2d 811, 622 N.Y.S.2d 87).
Although the defendant's contention that reversal is required because the prosecutor referred to the defendant as a “player” in the “game” of international heroin trafficking is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Medina, 53 N.Y.2d 951, 953, 441 N.Y.S.2d 442, 424 N.E.2d 276;People v. Gill, 54 A.D.3d 965, 966, 864 N.Y.S.2d 135;People v. Norman, 40 A.D.3d 1130, 1131, 837 N.Y.S.2d 277), we also reach this issue pursuant to our interest of justice jurisdiction. Such comments were improper ( see People v. Brown, 223 A.D.2d 597, 597–598, 636 N.Y.S.2d 821;People v. Rivera, 178 A.D.2d 620, 621, 577 N.Y.S.2d 670). Nevertheless, the errors were harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the errors contributed to her conviction ( see People v. Arafet, 13 N.Y.3d 460, 467, 892 N.Y.S.2d 812, 920 N.E.2d 919;People v. Mack, 91 A.D.3d 794, 796, 936 N.Y.S.2d 320;People v. Brown, 285 A.D.2d 472, 727 N.Y.S.2d 330, 633;People v. Clausell, 223 A.D.2d 598, 636 N.Y.S.2d 823).
Furthermore, the defendant was not deprived of the effective assistance of counsel, as the record reveals that defense counsel provided meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).