Opinion
256 KA 18-01349
06-12-2020
The PEOPLE of the State of New York, Respondent, v. Wendell FUQUA, Defendant-Appellant.
NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW, FOR DEFENDANT-APPELLANT. WENDELL FUQUA, DEFENDANT-APPELLANT PRO SE. DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF COUNSEL), FOR RESPONDENT.
NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW, FOR DEFENDANT-APPELLANT.
WENDELL FUQUA, DEFENDANT-APPELLANT PRO SE.
DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16 [1] ) and criminal sale of a controlled substance in the third degree (§ 220.39 [1] ). Defendant contends in his main brief that meaningful appellate review is precluded inasmuch as no audibility hearing was conducted with respect to audio and video recordings that were received in evidence at trial, the jury was not provided with transcripts of those recordings that may be reviewed on appeal, and the court reporter did not transcribe those recordings when they were played for the jury. That contention is unpreserved for our review (see People v. Morris , 32 A.D.3d 561, 561-562, 819 N.Y.S.2d 359 [3d Dept. 2006], lv denied 7 N.Y.3d 869, 824 N.Y.S.2d 613, 857 N.E.2d 1144 [2006] ; People v. Hickey , 284 A.D.2d 929, 930, 725 N.Y.S.2d 907 [4th Dept. 2001], lv denied 97 N.Y.2d 656, 737 N.Y.S.2d 57, 762 N.E.2d 935 [2001] ; see also People v. Votra , 173 A.D.3d 1643, 1644, 102 N.Y.S.3d 373 [4th Dept. 2019] ). Here, defendant did not object to the audibility of the recordings or request an audibility hearing, nor did he request that the jury be provided with transcripts of the recordings or that the stenographer transcribe them when they were played at trial. We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
We conclude that defendant's claim of actual innocence in his pro se supplemental brief is not properly before us on defendant's direct appeal. "A claim of actual innocence must be based upon reliable evidence which was not presented at the [time of trial] ..., and thus must be raised by a motion pursuant to CPL article 440" ( People v. Alsaifullah, 162 A.D.3d 1483, 1486, 77 N.Y.S.3d 811 [4th Dept. 2018], lv denied 32 N.Y.3d 1062, 89 N.Y.S.3d 117, 113 N.E.3d 951 [2018] [internal quotation marks omitted]; see People v. Hamilton, 115 A.D.3d 12, 23, 979 N.Y.S.2d 97 [2d Dept. 2014] ).
Defendant also contends in his pro se supplemental brief that his arrest was not supported by probable cause and that County Court therefore erred in refusing to suppress the physical evidence seized incident to his arrest. We reject that contention. " ‘Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief tha[t] an offense has been committed by the person arrested’ " ( People v. Scott , 174 A.D.3d 1049, 1050, 104 N.Y.S.3d 410 [3d Dept. 2019] ). Here, we conclude that probable cause was established by the independent observations of the police officer working with the confidential informant, which that officer relayed to the arresting officers (see People v. Shulman, 6 N.Y.3d 1, 25-26, 809 N.Y.S.2d 485, 843 N.E.2d 125 [2005], cert denied 547 U.S. 1043, 126 S.Ct. 1623, 164 L.Ed.2d 339 [2006] ; People v. Farrow, 98 N.Y.2d 629, 631, 745 N.Y.S.2d 752, 772 N.E.2d 1110 [2002] ; People v. Folk, 44 A.D.3d 1095, 1096-1097, 843 N.Y.S.2d 695 [3d Dept. 2007], lv denied 9 N.Y.3d 1006, 850 N.Y.S.2d 394, 880 N.E.2d 880 [2007] ).
We reject defendant's further contention in his pro se supplemental brief that his conviction is not supported by legally sufficient evidence. Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the evidence is legally sufficient to support the conviction with respect to each count (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Defendant also challenges the weight of the evidence in his pro se supplemental brief. 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 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Defendant further contends in his pro se supplemental brief that he was denied effective assistance of counsel based upon several acts or omissions on the part of defense counsel. Defendant's allegation that defense counsel failed to object to prosecutorial misconduct is without merit, inasmuch as the prosecutor did not engage in prosecutorial misconduct (see People v. Graham , 174 A.D.3d 1486, 1489, 105 N.Y.S.3d 756 [4th Dept. 2019], lv denied 34 N.Y.3d 1016, 114 N.Y.S.3d 759, 138 N.E.3d 488 [2019] ). To the extent that we are able to review defendant's remaining allegations of ineffective assistance on the record before us, we conclude that defendant 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 [1981] ). To the extent that defendant's contention is based upon matters outside the record on appeal, his contention must be raised by way of a motion pursuant to CPL 440.10 (see People v. Wilcher , 158 A.D.3d 1267, 1268-1269, 70 N.Y.S.3d 712 [4th Dept. 2018], lv denied 31 N.Y.3d 1089, 79 N.Y.S.3d 111, 103 N.E.3d 1258 [2018] ).
We have reviewed the remaining contentions raised in defendant's pro se supplemental brief and conclude that none warrants reversal or modification of the judgment.