Opinion
02-10-2017
The PEOPLE of The State of New York, Respondent, v. Rommel BURDINE, also known as Romell Burdine, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen N. McDermott of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen N. McDermott of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: SMITH, J.P., DeJOSEPH, NeMOYER, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him, after a jury trial, of two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1], [12] ) and criminally using drug paraphernalia in the second degree (§ 220.50[3] ). At the outset, we agree with defendant that the court erred in denying his motion to suppress certain text messages collected from his cell phones (see People v. Marinez, 121 A.D.3d 423, 423–424, 993 N.Y.S.2d 304 ). It is undisputed that, after the defendant was pulled over, the responding police officers recovered two cell phones from the vehicle's glove box and one of them looked through certain text messages on those phones. In our view, that police action constituted an illegal warrantless search of defendant's cell phones, thereby mandating suppression of the text messages (see id. ). The fact that the officers subsequently applied for a search warrant covering the cell phones is of no moment inasmuch as they "used the [illegal] search to assure themselves that there [was] cause to obtain a warrant" in the first instance (People v. Burr, 70 N.Y.2d 354, 362, 520 N.Y.S.2d 739, 514 N.E.2d 1363, cert. denied 485 U.S. 989, 108 S.Ct. 1294, 99 L.Ed.2d 505 ; see People v. Perez, 266 A.D.2d 242, 243, 697 N.Y.S.2d 672, lv. dismissed 94 N.Y.2d 923, 708 N.Y.S.2d 363, 729 N.E.2d 1162 ).
We conclude, however, that the error is harmless inasmuch as the evidence of defendant's guilt is overwhelming, and there is no significant probability that defendant would have been acquitted if the court had not admitted the text messages in evidence (see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ). Defendant was discovered driving a vehicle that contained a wholesale brick of crack, seven individually bagged ecstasy-analogue tabs, a scale, and empty baggies. Furthermore, defendant demonstrated consciousness of guilt by initially fleeing from police; over $600 in cash was recovered from defendant's person; and defendant's passenger testified that defendant was a drug dealer who was dealing out of his car. Thus, in our view, there is no significant probability that defendant would have been acquitted but for the erroneously-admitted text messages (see People v. Solano, 138 A.D.3d 525, 526, 29 N.Y.S.3d 347, lv. denied 27 N.Y.3d 1155, 39 N.Y.S.3d 389, 62 N.E.3d 129 ). In addition, viewing the evidence in light of the elements of the 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 ), we reject defendant's further contention that the verdict is contrary to the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Contrary to defendant's further contention, the court did not abuse its discretion in refusing to assign him new counsel. The record establishes that the court made "the requisite minimal inquiry into defendant's reasons for requesting new counsel ... and defendant did not establish a serious complaint concerning defense counsel's representation and thus did not suggest a serious possibility of good cause for substitution [of counsel]" (People v. Jones, 114 A.D.3d 1239, 1240, 980 N.Y.S.2d 670, lv. denied 23 N.Y.3d 1038, 993 N.Y.S.2d 252, 17 N.E.3d 507 [internal quotation marks omitted] ). "[T]he fact that defendant and his attorney may have disagreed with respect to ... strategy is not sufficient to warrant a substitution" (People v. Tenace, 256 A.D.2d 928, 930, 682 N.Y.S.2d 279, lv. denied 93 N.Y.2d 902, 689 N.Y.S.2d 714, 711 N.E.2d 990, cert. denied 530 U.S. 1217, 120 S.Ct. 2223, 147 L.Ed.2d 254, reh. denied 530 U.S. 1290, 121 S.Ct. 7, 147 L.Ed.2d 1031 ).
Contrary to defendant's contention, the court did not abuse its discretion in denying his motion for a missing witness charge with respect to one of the responding police officers who testified at the suppression hearing (see generally People v. Macana, 84 N.Y.2d 173, 180, 615 N.Y.S.2d 656, 639 N.E.2d 13 ). Even assuming, arguendo, that the officer's testimony would not have been cumulative, we conclude that a missing witness charge was not warranted given the officer's unavailability (see People v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583 ).
We reject defendant's contention that he was denied effective assistance of counsel. To the extent that defendant is calling counsel's effectiveness into question by virtue of his alleged failure to seek a spoliation sanction at the suppression hearing, that contention involves matters outside the record on appeal and must be raised by way of a motion pursuant to CPL article 440. With respect to defendant's remaining claims of ineffective assistance of counsel, we conclude that the evidence, the law, and the circumstances of this case, viewed in totality and as of the time of representation, establish that he received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
The sentence is neither unduly harsh nor severe. Defendant's remaining contentions are not preserved for our review, and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.