Opinion
2012-04-27
The PEOPLE of the State of New York, Respondent, v. Anthony C. JACKSON, Jr., Defendant–Appellant.
Peter J. Digiorgio, Jr., Utica, for Defendant–Appellant. Cindy F. Intschert, District Attorney, Watertown (Harmony A. Healy of Counsel), for Respondent.
Peter J. Digiorgio, Jr., Utica, for Defendant–Appellant. Cindy F. Intschert, District Attorney, Watertown (Harmony A. Healy of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him following a jury trial of one count each of criminal sale of a controlled substance in the second degree (Penal Law § 220.41[1] ) and criminal sale of a controlled substance in the third degree (§ 220.39[1] ), and two counts of criminal possession of a controlled substance in the third degree (§ 220.16[1] ). The conviction arises out of defendant's sale of cocaine to a police informant on two separate occasions on a single day. Defendant rejected a plea offer that would have subjected him to a local sentence of one year in jail, and the matter proceeded to a trial that resulted in a hung jury. Defendant thereafter was convicted of the above crimes following a retrial.
We reject defendant's contention that County Court's pretrial Molineux ruling constitutes an abuse of discretion ( see People v. Molineux, 168 N.Y. 264, 61 N.E. 286). The court thereby denied the People's request to admit evidence of a prior uncharged drug sale by defendant to the informant, but ruled that such evidence could be admitted if defendant opened the door to it at trial. Although evidence of the prior uncharged drug sale was not admitted at trial, defendant asserts that he would have testified if not for the court's improper conditional ruling. We conclude that the court's ruling was proper ( see People v. Rojas, 97 N.Y.2d 32, 36–38, 735 N.Y.S.2d 470, 760 N.E.2d 1265; People v. Cimino, 49 A.D.3d 1155, 1156, 856 N.Y.S.2d 368, lv. denied 10 N.Y.3d 861, 860 N.Y.S.2d 487, 890 N.E.2d 250; People v. Ortiz, 259 A.D.2d 979, 980, 688 N.Y.S.2d 358, lv. denied 93 N.Y.2d 1024, 697 N.Y.S.2d 583, 719 N.E.2d 944). We further conclude that the court properly allowed the People to introduce evidence at trial that defendant had offered to pay the informant $5,000 if the informant did not testify at the retrial. It is well settled that “[e]vidence that a defendant attempted to procure false testimony or to corrupt a witness is generally admissible as evidence of consciousness of guilt” ( People v. Violante, 144 A.D.2d 995, 996, 534 N.Y.S.2d 281, lv. denied 73 N.Y.2d 897, 538 N.Y.S.2d 810, 535 N.E.2d 1350, citing People v. Davis, 43 N.Y.2d 17, 26, 400 N.Y.S.2d 735, 371 N.E.2d 456, cert. denied 435 U.S. 998, 98 S.Ct. 1653, 56 L.Ed.2d 88, rearg. dismissed 61 N.Y.2d 670, 472 N.Y.S.2d 1028, 460 N.E.2d 232; see People v. Hendricks [Appeal No. 1], 4 A.D.3d 798, 799, 771 N.Y.S.2d 440, lv. denied 2 N.Y.3d 800, 781 N.Y.S.2d 299, 814 N.E.2d 471).
Defendant further contends that the court should have precluded three police officers from offering identification testimony at trial based on the People's failure to comply with the notice requirements of CPL 710.30. That contention is unpreserved for our review ( see CPL 470.05[2]; People v. Pagan, 248 A.D.2d 325, 670 N.Y.S.2d 831, affd. 93 N.Y.2d 891, 689 N.Y.S.2d 686, 711 N.E.2d 964), and in any event lacks merit. CPL 710.30 applies to “ ‘in-court identifications predicated on earlier police-arranged confrontations between a defendant and an eyewitness, typically involving the use of lineups, showups or photographs, for the purpose of establishing the identity of the criminal actor’ ” ( People v. Gee, 286 A.D.2d 62, 72, 730 N.Y.S.2d 810, affd. 99 N.Y.2d 158, 753 N.Y.S.2d 19, 782 N.E.2d 1155, rearg. denied 99 N.Y.2d 652, 760 N.Y.S.2d 105, 790 N.E.2d 279, quoting People v. Gissendanner, 48 N.Y.2d 543, 552, 423 N.Y.S.2d 893, 399 N.E.2d 924; see generally People v. Peterson, 194 A.D.2d 124, 128, 605 N.Y.S.2d 542, lv. denied 83 N.Y.2d 856, 612 N.Y.S.2d 388, 634 N.E.2d 989). Where, as here, “there has been no pretrial identification procedure and the defendant is identified in court for the first time, the defendant is not [thereby] deprived of a fair trial because [defendant] is able to explore weaknesses and suggestiveness of the identification in front of the jury” ( People v. Madison, 8 A.D.3d 956, 957, 778 N.Y.S.2d 593, lv. denied 3 N.Y.3d 709, 785 N.Y.S.2d 36, 818 N.E.2d 678 [internal quotation marks omitted] ).
Defendant failed to preserve for our review his contention that the People improperly attempted to elicit identification testimony from a person present when the drug sales took place ( see CPL 470.05[2] ). We note in any event that the witness in question did not in fact make an in-court identification of defendant. Defendant also failed to preserve for our review his contention that the court punished him for exercising his constitutional right to a trial by sentencing him to five years in prison rather than to the one year in jail offered during pretrial plea negotiations ( see People v. Brink, 78 A.D.3d 1483, 1485, 910 N.Y.S.2d 606, lv. denied 16 N.Y.3d 742, 917 N.Y.S.2d 623, 942 N.E.2d 1048, 16 N.Y.3d 828, 921 N.Y.S.2d 192, 946 N.E.2d 180; People v. Dorn, 71 A.D.3d 1523, 1523–1524, 895 N.Y.S.2d 906). In any event, as the Court of Appeals has noted, “a State may encourage a guilty plea by offering substantial benefits, notwithstanding the fact that every such instance is bound to have the concomitant effect of discouraging a defendant's assertion of his trial rights” ( People v. Pena, 50 N.Y.2d 400, 411–412, 429 N.Y.S.2d 410, 406 N.E.2d 1347, rearg. denied 51 N.Y.2d 770, 432 N.Y.S.2d 1029, 411 N.E.2d 799, cert. denied 449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814). Here, our “review of the record shows no retaliation or vindictiveness against the defendant for electing to proceed to trial” ( People v. Shaw, 124 A.D.2d 686, 686, 507 N.Y.S.2d 918, lv. denied 69 N.Y.2d 750, 512 N.Y.S.2d 1054, 505 N.E.2d 253). Nor is the sentence unduly harsh or severe. Although the court could have imposed consecutive sentences totaling 19 years of imprisonment on the two counts of criminal sale of a controlled substance, the court instead imposed concurrent sentences with a maximum of 5 years of imprisonment. We also note that defendant refused to accept responsibility for his crimes and that, while these charges were pending, he was convicted of other criminal charges in Bronx County.
We further conclude that the court did not err in allowing the People to introduce audio recordings of the controlled buys. Although portions of the recordings are less than clear, they are not “so inaudible and indistinct that the jury would have to speculate concerning [their] contents” and would not learn anything relevant from them ( People v. Cleveland, 273 A.D.2d 787, 788, 709 N.Y.S.2d 751, lv. denied 95 N.Y.2d 864, 715 N.Y.S.2d 218, 738 N.E.2d 366; see People v. Rivera, 257 A.D.2d 172, 176, 691 N.Y.S.2d 4, affd. 94 N.Y.2d 908, 707 N.Y.S.2d 620, 729 N.E.2d 339). Finally, 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 conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.