Opinion
769 KA 18-00463
10-01-2021
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. SYLVESTER L. BRITT, JR., DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, WINSLOW, AND BANNISTER, JJ.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), rendered January 10, 2018. The judgment convicted defendant upon a jury verdict of criminal possession of a controlled substance in the seventh degree, assault in the second degree and resisting arrest.
It 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, assault in the second degree (Penal Law § 120.05 [3]) and criminal possession of a controlled substance in the seventh degree (§ 220.03). Contrary to defendant's contention, County Court (Randall, J.) did not err in refusing to suppress physical evidence inasmuch as the court properly determined that police officers had probable cause to arrest defendant. A police officer observed defendant engage in hand-to-hand transactions with two known drug users in a known drug location. In each exchange, defendant provided the individual with an object in a glassine baggie and the individual provided defendant with an undetermined amount of money.
The Court of Appeals has recognized that the passing of a glassine envelope is "the hallmark of an illicit drug exchange" (People v McRay, 51 N.Y.2d 594, 604 [1980]). "[I]f money is passed in exchange for the envelope, probable cause almost surely would exist" (id.). Based on the officer's observations of the exchanges, the drug-prone location in which the exchanges took place, defendant's furtive acts, and his attempt to flee, we conclude that there was probable cause to believe that defendant had committed a narcotics offense and, as a result, there was no basis to suppress the physical evidence (see People v Nichols, 175 A.D.3d 1117, 1118 [4th Dept 2019], lv denied 34 N.Y.3d 1018 [2019]; see generally People v Jones, 90 N.Y.2d 835, 837 [1997]).
Defendant further contends that Supreme Court (Renzi, J.) deprived him of his right to counsel when it denied defense counsel's "application to be relieved due to a confidential conflict." Before trial, defense counsel learned that the Public Defender's Office (PD's Office), i.e., his employer, was representing another individual who was charged with murder and that defendant had information relevant to that crime. Defendant wanted to use that information to secure an advantageous plea bargain with the prosecutor's office. As a result of the conflict of interest, the PD's Office sought to be relieved of representing that other individual as well as defendant. The court presiding over the murder case granted that request, but the court herein denied it, stating that "there was going to be no plea bargaining or any disposition short of a trial. This case was given to me for trial, and I'm going to try the case."
Even assuming, arguendo, that there was an actual conflict of interest (see generally People v Sanchez, 21 N.Y.3d 216, 223 [2013]; People v Solomon, 20 N.Y.3d 91, 97 [2012]), we conclude that any conflict was resolved when the court presiding over the murder case relieved the PD's Office from its representation of the other individual (see People v Wright, 13 A.D.3d 726, 728-729 [3d Dept 2004], lv denied 5 N.Y.3d 857 [2005]; see also People v Patterson, 173 A.D.3d 1737, 1738-1739 [4th Dept 2019], affd 34 N.Y.3d 1112 [2019]) .
Defendant further contends that the court's remarks, i.e., stating that there would be no plea negotiations or "any disposition short of a trial," infringed on his right to plead guilty pursuant to CPL 220.10 (2). Although "there is no constitutional right to plea bargain" (Weatherford v Bursey, 429 U.S. 545, 561 [1977]), a defendant has the right, subject to limited exceptions not relevant here, to enter a guilty plea to the entire indictment (see CPL 220.10 [2]; People v Sanchez, 124 A.D.3d 685, 689 [2d Dept 2015], lv denied 25 N.Y.3d 1207 [2015]; see generally People v Esajerre, 35 N.Y.2d 463, 466-467 [1974]). Here, however, there is no evidence in the record that defendant ever indicated a desire to plead guilty to the entire indictment. To the extent that such evidence exists outside the record on appeal, defendant's contention should be addressed in a CPL 440.10 motion (see generally People v Norman, 128 A.D.3d 1418, 1419 [4th Dept 2015], lv denied 27 N.Y.3d 1003 [2016]; People v Johnson, 88 A.D.3d 1293, 1294 [4th Dept 2011]).
Assuming, arguendo, that defendant, by controverting the prosecutor's race-neutral reasons for striking a prospective juror, preserved for our review his contention that the prosecutor's reasons for striking that prospective juror were pretextual (see People v Linder, 170 A.D.3d 1555, 1558 [4th Dept 2019], lv denied 33 N.Y.3d 1071 [2019]; cf. People v Massey, 173 A.D.3d 1801, 1802 [4th Dept 2019]; People v Holloway, 71 A.D.3d 1486, 1486-1487 [4th Dept 2010], lv denied 15 N.Y.3d 774 [2010]), we conclude that the prosecutor's stated reasons, i.e., that the prospective juror was a former prison employee and a former minister, were sufficiently race-neutral to withstand defendant's Batson challenge (see e.g. People v Jackson, 185 A.D.3d 1454, 1454-1455 [4th Dept 2020], lv denied 35 N.Y.3d 1113 [2020]; People v Diaz, 268 A.D.2d 534, 534-535 [2d Dept 2000], lv denied 95 N.Y.2d 834 [2000]; see generally People v Page, 105 A.D.3d 1380, 1381 [4th Dept 2013], lv denied 23 N.Y.3d 1023 [2014]).
Defendant's contention that the conviction of assault in the second degree (Penal Law § 120.05 [3]) is not based on legally sufficient evidence is preserved only in part (see People v Gray, 86 N.Y.2d 10, 19 [1995]). In any event, that contention is without merit (see generally People v Bleakley, 69 N.Y.2d 490, 495 [1987]). We further conclude that, viewing the evidence in light of the elements of assault in the second degree as charged to the jury (see People v Danielson, 9 N.Y.3d 342, 349 [2007]), the verdict with respect to that crime is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495).
We have reviewed defendant's remaining contentions and conclude that none warrants reversal or modification of the judgment.