Opinion
895 KA 19-00980
12-23-2022
The PEOPLE of the State of New York, Respondent, v. Miguel A. PARILLA, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, 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 upon a jury verdict of, inter alia, criminal possession of a controlled substance in the third degree ( Penal Law § 220.16 [1] ), arising from the discovery of drugs by the police following a traffic stop of a vehicle in which defendant was the passenger. We affirm.
Contrary to defendant's contention, Supreme Court properly refused to suppress physical evidence and statements obtained as a result of the traffic stop (see People v. Rodriguez-Rivera , 203 A.D.3d 1624, 1625-1626, 164 N.Y.S.3d 745 [4th Dept. 2022], lv denied 39 N.Y.3d 942, 177 N.Y.S.3d 524, 198 N.E.3d 767 [2022] ; People v. Swift , 185 A.D.3d 1442, 1443, 128 N.Y.S.3d 132 [4th Dept. 2020], lv denied 36 N.Y.3d 976, 138 N.Y.S.3d 462, 162 N.E.3d 691 [2020] ; People v. Rosario , 64 A.D.3d 1217, 1218, 881 N.Y.S.2d 788 [4th Dept. 2009], lv denied 13 N.Y.3d 941, 895 N.Y.S.2d 332, 922 N.E.2d 921 [2010] ).
We reject defendant's contention that the court erred in ruling, pursuant to ( People v. Molineux, 168 N.Y. 264, 61 N.E. 286 [1901] ), that the People were permitted to introduce evidence of defendant's prior drug sales. The testimony concerning defendant's prior drug sales was admissible with respect to the issue of his intent to sell drugs (see generally Penal Law § 220.16 [1] ), and we conclude that the probative value of such evidence outweighed the danger of prejudice and we also note that the court gave an appropriate limiting instruction (see People v. Kims , 24 N.Y.3d 422, 439, 999 N.Y.S.2d 337, 24 N.E.3d 573 [2014] ; People v. Smith , 129 A.D.3d 1549, 1549, 10 N.Y.S.3d 374 [4th Dept. 2015], lv denied 26 N.Y.3d 971, 18 N.Y.S.3d 608, 40 N.E.3d 586 [2015] ; People v. Whitfield , 115 A.D.3d 1181, 1182, 982 N.Y.S.2d 242 [4th Dept. 2014], lv denied 23 N.Y.3d 1044, 993 N.Y.S.2d 258, 17 N.E.3d 513 [2014] ).
Defendant further contends that the People deprived him of a fair trial by improperly introducing, without obtaining an advance ruling and in violation of Molineux , testimony that defendant, who was concerned about two unspecified "strikes on his record," made multiple postarrest attempts to bribe the driver of the vehicle to take responsibility for the drug charges. We reject that contention. Even assuming, arguendo, that the People should have sought an advance ruling with respect to the testimony that defendant attempted to bribe the driver to take responsibility for the drug charges (see generally People v. Ventimiglia , 52 N.Y.2d 350, 356, 361-362, 438 N.Y.S.2d 261, 420 N.E.2d 59 [1981] ), we conclude that defendant was not deprived of a fair trial because that testimony was plainly admissible as consciousness of guilt evidence (see People v. Cotton , 184 A.D.3d 1145, 1146, 126 N.Y.S.3d 287 [4th Dept. 2020], lv denied 35 N.Y.3d 1112, 133 N.Y.S.3d 507, 158 N.E.3d 524 [2020] ; People v. Wheeler , 159 A.D.3d 1138, 1142, 72 N.Y.S.3d 220 [3d Dept. 2018], lv denied 31 N.Y.3d 1123, 81 N.Y.S.3d 383, 106 N.E.3d 766 [2018] ; People v. Lumaj , 298 A.D.2d 335, 335, 749 N.Y.S.2d 237 [1st Dept. 2002], lv denied 99 N.Y.2d 616, 757 N.Y.S.2d 827, 787 N.E.2d 1173 [2003] ; see generally People v. Bennett , 79 N.Y.2d 464, 469-470, 583 N.Y.S.2d 825, 593 N.E.2d 279 [1992] ), its probative value was not outweighed by its potential for prejudice (see Cotton , 184 A.D.3d at 1146, 126 N.Y.S.3d 287 ), and the lack of an advance ruling did not cause defendant any prejudice (see People v. McLeod , 279 A.D.2d 372, 372, 719 N.Y.S.2d 557 [1st Dept. 2001], lv denied 96 N.Y.2d 921, 732 N.Y.S.2d 638, 758 N.E.2d 664 [2001] ; People v. Andrews , 277 A.D.2d 1009, 1010, 716 N.Y.S.2d 841 [4th Dept. 2000], lv denied 96 N.Y.2d 780, 725 N.Y.S.2d 644, 749 N.E.2d 213 [2001] ; People v. Pugh , 236 A.D.2d 810, 812, 653 N.Y.S.2d 994 [4th Dept. 1997], lv denied 89 N.Y.2d 1099, 660 N.Y.S.2d 393, 682 N.E.2d 994 [1997] ). Additionally, even assuming, arguendo, that the People should have sought an advance ruling with respect to the testimony implying that defendant had committed prior crimes and that the court erred in admitting that testimony, we conclude that any error is harmless inasmuch as "[t]he evidence of defendant's guilt is overwhelming ... and there is no significant probability that the jury would have acquitted defendant if the allegedly improper Molineux evidence had been excluded" ( People v. Casado , 99 A.D.3d 1208, 1211-1212, 951 N.Y.S.2d 797 [4th Dept. 2012], lv denied 20 N.Y.3d 985, 958 N.Y.S.2d 700, 982 N.E.2d 620 [2012] ; see generally People v. Frankline , 27 N.Y.3d 1113, 1115, 36 N.Y.S.3d 834, 57 N.E.3d 26 [2016] ; People v. Crimmins , 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support his conviction of criminal possession of a controlled substance in the third degree. Defendant's general motion for a trial order of dismissal with respect to that count was not " ‘specifically directed’ at the alleged" shortcomings in the evidence raised on appeal ( People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ), and defendant's legal sufficiency contention made on appeal is not otherwise preserved for our review because, contrary to defendant's assertion, that contention is not based on a pretrial legal argument that was definitively rejected by the court (cf. People v. Finch , 23 N.Y.3d 408, 412, 991 N.Y.S.2d 552, 15 N.E.3d 307 [2014] ). Next, even assuming, arguendo, that an acquittal would not have been unreasonable (see People v. Danielson , 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), upon acting, in effect, as a second jury by independently reviewing the evidence in light of the elements of the crime of criminal possession of a controlled substance in the third degree as charged to the jury (see People v. Kancharla , 23 N.Y.3d 294, 302-303, 991 N.Y.S.2d 1, 14 N.E.3d 354 [2014] ; People v. Delamota , 18 N.Y.3d 107, 116-117, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ; Danielson , 9 N.Y.3d at 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we reject defendant's contention that the verdict with respect to that crime is 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 [1987] ).
Finally, contrary to defendant's contention, the sentence is not unduly harsh or severe.