Opinion
9669 Ind. 435/14
06-20-2019
The PEOPLE of the State of New York, Respondent, v. Tommy BARNES, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Taylor L. Napolitano of counsel), for appellant. Tommy Barnes, appellant pro se. Cyrus R. Vance, Jr., District Attorney, New York (Jonathon Krois of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Taylor L. Napolitano of counsel), for appellant.
Tommy Barnes, appellant pro se.
Cyrus R. Vance, Jr., District Attorney, New York (Jonathon Krois of counsel), for respondent.
Friedman, J.P., Richter, Kahn, Singh, JJ.
Judgment, Supreme Court, New York County (Juan M. Merchan, J. at suppression motion; Robert M. Stolz, J. at motion in limine; Edward J. McLaughlin, J. at jury trial and sentencing), rendered June 28, 2016, convicting defendant of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a term of 15 years, unanimously affirmed.
Defendant's suppression motion was properly denied, and the verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the credibility determinations made by the suppression court or the jury. We do not find that defendant's acquittal of a sale charge undermines the weight of the evidence supporting the possession conviction (see People v. Rayam, 94 N.Y.2d 557, 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000] ; People v. Johnson, 73 A.D.3d 578, 580, 901 N.Y.S.2d 596 [1st Dept. 2010], lv denied 15 N.Y.3d 893, 912 N.Y.S.2d 582, 938 N.E.2d 1017 [2010] ).
The court providently exercised its discretion in denying defense counsel's motion in limine seeking to cross-examine a police witness based on a federal action against him and other officers that had been settled without any admission of wrongdoing. Defendant failed to identify "specific allegations that are relevant to the credibility of the law enforcement witness" ( People v. Smith, 27 N.Y.3d 652, 662, 36 N.Y.S.3d 861, 57 N.E.3d 53 [2016] ). The federal "complaint did not allege, or even support an inference, that [the witness] personally engaged in any specific misconduct or acted with knowledge of the misconduct of other officers" ( id. at 663, 36 N.Y.S.3d 861, 57 N.E.3d 53 [internal quotation marks omitted]; see also People v. Smith, 171 A.D.3d 523, 98 N.Y.S.3d 154 [1st Dept. 2019] ). Moreover, the in limine motion court conducted an inquiry that revealed that in the incident giving rise to the federal lawsuit the witness merely signed paperwork at the stationhouse after other officers had made the allegedly improper arrest elsewhere, outside the witness's presence (see People v. Cepeda, 158 A.D.3d 468, 469, 70 N.Y.S.3d 492 [1st Dept. 2018], lv denied 31 N.Y.3d 1080, 103 N.E.3d 1248 [2018] ).
Defendant did not preserve his challenges to the court's main and supplemental jury charges, and we decline to review them in the interest of justice. As an alternative holding, we find that the court's permissive charge on intent did not shift the burden of proof (see People v. Getch, 50 N.Y.2d 456, 429 N.Y.S.2d 579, 407 N.E.2d 425 [1980] ) and that the charge under Allen v. United States , 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896) was not coercive (see People v. James, 135 A.D.3d 602, 22 N.Y.S.3d 865 [1st Dept.], lv denied 27 N.Y.3d 1070, 38 N.Y.S.3d 840, 60 N.E.3d 1206 [2016] ).
Defendant's absence from a discussion between the court and the attorneys of a jury note seeking clarification about the elements of certain counts was not reversible error, because this was "a purely legal matter about which defendant could not have provided meaningful input" ( People v. Peters, 166 A.D.3d 500, 502, 89 N.Y.S.3d 31 [1st Dept. 2018], lv denied 33 N.Y.3d 980, 101 N.Y.S.3d 243, 124 N.E.3d 732 [2019] ).
We have considered and rejected the arguments raised in defendant's pro se supplemental brief.
We perceive no basis for reducing the sentence.