Opinion
107515.
07-13-2017
Danielle Neroni Reilly, Albany, for appellant. P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Danielle Neroni Reilly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Before: PETERS, P.J., GARRY, ROSE, CLARK and RUMSEY, JJ.
CLARK, J.
Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered February 5, 2015, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree.
On February 26, 2012, during a controlled buy operation overseen by the Community Response Unit of the City of Albany Police Department, defendant allegedly sold heroin to a male confidential informant (hereinafter CI). Thereafter, on March 13, 2012 and again on March 19, 2012, defendant allegedly sold heroin to a different CI, this time a female, in two additional controlled buy operations. On March 28, 2012, nine days after the third controlled buy, defendant was arrested and a search of his person revealed that he was in possession of 14 glassine envelopes of heroin. Defendant was charged by three indictments, which Supreme Court (Breslin, J.) subsequently joined upon the People's motion with three counts of criminal sale of a controlled substance in the third degree, one count of criminal possession of a controlled substance in the third degree and one count of criminal possession of a controlled substance in the seventh degree. After a jury trial, defendant was convicted of two counts of criminal sale of a controlled substance in the third degree and one count of criminal possession of a controlled substance in the third degree and sentenced to an aggregate prison term of seven years, followed by three years of postrelease supervision. Defendant thereafter appealed the judgment of conviction.
On appeal, this Court found that "various remarks made by the prosecutor during summation were so prejudicial in their cumulative effect that they operated to deny defendant his fundamental right to a fair trial" and that, therefore, reversal of the judgment of conviction and a new trial was required ( People v. Casanova, 119 A.D.3d 976, 977, 977–980, 988 N.Y.S.2d 713 [2014] ). This Court also held that a Wade hearing was necessary and directed that such hearing be held upon remittal ( id. at 980, 988 N.Y.S.2d 713 ).
Upon remittal, County Court (Lynch, J.) denied defendant's motion to sever the previously consolidated indictments and, after a Wade hearing, denied defendant's motion to suppress the male CI's pretrial identification of defendant. Following a jury trial, defendant was ultimately convicted of the same offenses—two counts of criminal sale of a controlled substance in the third degree and one count of criminal possession of a controlled substance in the third degree. Defendant was subsequently sentenced, as a second felony drug offender, to three concurrent prison terms of nine years, with three years of postrelease supervision. Defendant now appeals, and we affirm.
County Court did not err in denying defendant's motion to sever the indictments. "Offenses are joinable if, among other things, they are based upon different criminal transactions but defined by the same or similar statutory provisions, or if proof of either offense would be material and admissible as evidence-in-chief at the trial of the other offense" ( People v. Rogers, 94 A.D.3d 1246, 1248, 942 N.Y.S.2d 260 [2012], lv. denied 19 N.Y.3d 977, 950 N.Y.S.2d 359, 973 N.E.2d 769 [2012] ; accord People v. Wells, 141 A.D.3d 1013, 1015, 35 N.Y.S.3d 795 [2016], lvs. denied 28 N.Y.3d 1183, 1189, 52 N.Y.S.3d 710, 75 N.E.3d 102 [2017] ; see CPL 200.20[2][b], [c] ). "If the offenses at issue were joined solely because they were based upon the same or similar statutes, a court may—‘in the interest of justice and for good cause shown’—order that such offenses be tried separately" ( People v. Raucci, 109 A.D.3d 109, 117, 968 N.Y.S.2d 211 [2013], lv. denied 22 N.Y.3d 1158, 984 N.Y.S.2d 642, 7 N.E.3d 1130 [2014], quoting CPL 200.20[3] ; see People v. Wells, 141 A.D.3d at 1016, 35 N.Y.S.3d 795). However, if the offenses are properly joined on any other basis, the trial court lacks the statutory authority to sever (see People v. Parbhudial, 135 A.D.3d 978, 980, 22 N.Y.S.3d 648 [2016], lv. denied 27 N.Y.3d 967, 36 N.Y.S.3d 628, 56 N.E.3d 908 [2016] ; People v. Raucci, 109 A.D.3d at 117, 968 N.Y.S.2d 211 ; People v. Rogers, 94 A.D.3d at 1248, 942 N.Y.S.2d 260 ; see also CPL 200.20 [3 ] ).
Here, the indictments were properly joinable under CPL 200.20(2)(c) because the charged offenses—namely, criminal sale of a controlled substance in the third degree (see Penal Law § 220.39[1] ) and criminal possession of a controlled substance in the third degree (see Penal Law § 220.16 [1 ] )—"are defined by the same or similar statutory provisions and consequently are the same or similar in law" ( CPL 200.20[2] [c] ; see People v. Castle, 251 A.D.2d 891, 892, 674 N.Y.S.2d 840 [1998], lv. denied 92 N.Y.2d 923, 680 N.Y.S.2d 465, 703 N.E.2d 277 [1998] ). These offenses were also properly joinable under CPL 200.20(2)(b) because evidence of defendant's past drug sales is admissible as evidence of his possession of a controlled substance with intent to sell (see People v. Morman, 145 A.D.3d 1435, 1437, 43 N.Y.S.3d 619 [2016], lv. denied 29 N.Y.3d 999, 57 N.Y.S.3d 721, 80 N.E.3d 414 [2017] ; see generally People v. Raucci, 109 A.D.3d at 117, 968 N.Y.S.2d 211 ). Accordingly, as the indictments were joinable under either CPL 200.20(2)(b) or (c), County Court lacked the statutory authority to sever the indictments (see People v. Abdullah, 133 A.D.3d 925, 928, 20 N.Y.S.3d 659 [2015], lv. denied 27 N.Y.3d 990, 38 N.Y.S.3d 101, 59 N.E.3d 1213 [2016] ).
Although defendant further argues that County Court erroneously relied on the doctrine of "law of the case" in denying his motion to sever, a complete reading of County Court's bench decision reveals that the court did in fact resolve the motion on the merits.
Nor are we persuaded by defendant's assertion that the pretrial identification procedure used by police—a photo array—was unduly suggestive and that, therefore, the male CI's identification of him should have been suppressed. "A photo array is unduly suggestive if some characteristic of one picture draws the viewer's attention in such a way as to indicate that the police have made a particular selection" ( People v. Yousef, 8 A.D.3d 820, 821, 778 N.Y.S.2d 326 [2004] [internal quotation marks and citations omitted], lv. denied 3 N.Y.3d 743, 786 N.Y.S.2d 822, 820 N.E.2d 301 [2004] ; see People v. Muniz, 93 A.D.3d 871, 872, 939 N.Y.S.2d 181 [2012], lv. denied 19 N.Y.3d 965, 950 N.Y.S.2d 117, 973 N.E.2d 215 [2012] ; People v. Lawal, 73 A.D.3d 1287, 1288, 900 N.Y.S.2d 515 [2010] ). "Accordingly, the relevant characteristics of the individuals included in a photograph array must be sufficiently similar so as to not ‘create a substantial likelihood that the defendant would be singled out for identification’ " ( People v. Lanier, 130 A.D.3d 1310, 1312, 15 N.Y.S.3d 241 [2015], lv. denied 26 N.Y.3d 1009, 20 N.Y.S.3d 550, 42 N.E.3d 220 [2015], quoting People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ). While the People have the initial burden of establishing the reasonableness of police conduct and the absence of any undue suggestion, it is the defendant who bears the ultimate burden of proving that the pretrial identification procedure was unduly suggestive (see People v. Wells, 141 A.D.3d at 1017, 35 N.Y.S.3d 795; People v. Matthews, 101 A.D.3d 1363, 1364, 956 N.Y.S.2d 317 [2012], lvs. denied 20 N.Y.3d 1101, 1104, 965 N.Y.S.2d 797, 988 N.E.2d 535 [2013] ).
At the Wade hearing, Kevin Meehan, a detective involved in the controlled buy operations and defendant's arrest, testified that he presented the male CI with a manila folder containing a six-photograph array, which was generated by a computer program that pulls photographs from a statewide mug-shot database. Meehan stated that he informed the male CI that he "may or may not know" a person depicted in the photo array and that, before the male CI looked at the photo array, Meehan stepped back, outside of the male CI's line of vision, so as to not influence the identification process. Meehan testified that the male CI then opened the manila folder and identified defendant as his dealer. The photo array contained six color, close-up photographs with similar backgrounds of six males of varying skin tones, all with short dark hair, similar facial features and expressions and appearing to be of the same general age and build. Our review of the photo array belies defendant's assertion that there is a "significant difference" in his photograph as compared to the remaining five photographs. There is no requirement that the other individuals depicted in the photo array be " ‘nearly identical’ " to the defendant ( People v. Matthews, 101 A.D.3d at 1364, 956 N.Y.S.2d 317, quoting People v. Chipp, 75 N.Y.2d at 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 ). In our view, the physical characteristics of the six males depicted in the photo array are sufficiently similar so as to satisfy us that there was not a substantial likelihood that defendant would be singled out for identification (see People v. Ruiz, 148 A.D.3d 1212, 1214, 47 N.Y.S.3d 806 [2017] ; People v. Wells, 141 A.D.3d at 1017–1018, 35 N.Y.S.3d 795; People v. Matthews, 101 A.D.3d at 1364, 956 N.Y.S.2d 317 ). Accordingly, County Court properly denied defendant's motion to suppress the male CI's pretrial identification.
Defendant further claims that Meehan usurped the jury's fact-finding role by offering opinion testimony that defendant possessed the 14 glassine envelopes—found on his person subsequent to his arrest—with an intent to sell. County Court properly permitted Meehan to testify, based upon his experience as a detective and a uniformed officer, as to the factors that police officers generally consider when determining whether to arrest an individual for possession of a controlled substance or possession of a controlled substance with intent to sell (see e.g. People v. Hartzog, 15 A.D.3d 866, 866–867, 789 N.Y.S.2d 391 [2005], lv. denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679 [2005] ; People v. Tarver, 292 A.D.2d 110, 115, 741 N.Y.S.2d 130 [2002], lv. denied 98 N.Y.2d 702, 747 N.Y.S.2d 421, 776 N.E.2d 10 [2002] ; People v. Wright, 283 A.D.2d 712, 713, 725 N.Y.S.2d 711 [2001], lv. denied 96 N.Y.2d 926, 732 N.Y.S.2d 644, 758 N.E.2d 670 [2001] ; People v. Davis, 235 A.D.2d 941, 943, 653 N.Y.S.2d 404 [1997], lvs. denied 89 N.Y.2d 1010, 1013, 658 N.Y.S.2d 248, 680 N.E.2d 622 [1997] ). Indeed, the factors which typically distinguish a seller of narcotics from a user of narcotics are not within the common experience or knowledge of an average juror and, thus, expert opinion testimony on this topic " ‘may be helpful to the jury in understanding the evidence presented and in resolving material factual issues' " ( People v. Hartzog, 15 A.D.3d at 867, 789 N.Y.S.2d 391, quoting People v. Brown, 97 N.Y.2d 500, 505, 743 N.Y.S.2d 374, 769 N.E.2d 1266 [2002] ). To the extent that it was error for the court to allow the prosecutor to go further and question the detective as to his reasons for arresting defendant for criminal possession of a controlled substance with intent to sell, we would, in any event, find any such error to be harmless, given the overwhelming evidence of defendant's possession with intent to sell (see People v. Salaam, 46 A.D.3d 1130, 1131–1132, 848 N.Y.S.2d 395 [2007], lv. denied 10 N.Y.3d 816, 857 N.Y.S.2d 49, 886 N.E.2d 814 [2008] ; People v. Berry, 5 A.D.3d 866, 867, 773 N.Y.S.2d 181 [2004], lv. denied 3 N.Y.3d 637, 782 N.Y.S.2d 408, 816 N.E.2d 198 [2004] ; People v. Tarver, 292 A.D.2d at 115, 741 N.Y.S.2d 130 ).
We note that, while the prosecutor's question was specifically directed at the facts of this case, Meehan gave more generalized testimony regarding behavior that is typically attributed to narcotics dealers.
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We similarly find no merit to defendant's contention that he was deprived of a fair trial as a result of comments made by the prosecutor during summation. Initially, contrary to defendant's assertion, the prosecutor did not improperly vouch for the credibility of the female CI by stating that the jury "saw [that] she was open about the questions that were asked of her" (see People v. Ruiz, 8 A.D.3d 831, 832, 778 N.Y.S.2d 559 [2004], lv. denied 3 N.Y.3d 711, 785 N.Y.S.2d 39, 818 N.E.2d 681 [2004] ; People v. Overlee, 236 A.D.2d 133, 144, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ). In making such statement, the prosecutor repeatedly emphasized to the jurors that they were the judges of credibility and that the issue of the female CI's credibility was left to them to decide. Defendant failed to preserve his further challenge to the prosecutor's comment in summation concerning the male CI's history of working as a CI for various law enforcement agencies (see CPL 470.05[2] ; People v. Wynn, 149 A.D.3d 1252, 1255, 52 N.Y.S.3d 136 [2017] ; People v. Clark, 52 A.D.3d 860, 863, 858 N.Y.S.2d 847 [2008], lv. denied 11 N.Y.3d 831, 868 N.Y.S.2d 605, 897 N.E.2d 1089 [2008] ). If properly preserved, we would find that the prosecutor's comment was an isolated impropriety (see People v. Casanova, 119 A.D.3d at 979, 988 N.Y.S.2d 713 ; cf. People v. Oathout, 21 N.Y.3d 127, 131, 967 N.Y.S.2d 654, 989 N.E.2d 936 [2013] ) that did not deprive defendant of a fair trial (see People v. Wynn, 149 A.D.3d at 1256, 52 N.Y.S.3d 136 ; People v. Villalona, 145 A.D.3d 625, 626, 46 N.Y.S.3d 7 [2016], lv. denied 29 N.Y.3d 953, 54 N.Y.S.3d 384, 76 N.E.3d 1087 [2017] ).
Lastly, defendant argues that he was unlawfully penalized for exercising his right to appeal because he received a harsher sentence upon retrial than was imposed after his initial conviction. In particular, after the first trial, defendant received an aggregate prison term of seven years, whereas, upon retrial, he received an aggregate prison term of nine years ( People v. Casanova, 119 A.D.3d at 977, 988 N.Y.S.2d 713 ). "In order to insure that trial courts do not impose longer sentences to punish defendants for taking an appeal, a presumption of vindictiveness generally arises when defendants who have won appellate reversals are given greater sentences after their retrials than were imposed after their initial convictions" ( People v. Young, 94 N.Y.2d 171, 176, 701 N.Y.S.2d 309, 723 N.E.2d 58 [1999] ; see People v. Brown, 77 A.D.3d 1190, 1192, 910 N.Y.S.2d 209 [2010] ; People v. Hilliard, 49 A.D.3d 910, 914, 853 N.Y.S.2d 198 [2008], lv. denied 10 N.Y.3d 959, 863 N.Y.S.2d 143, 893 N.E.2d 449 [2008] ). To overcome this presumption, the trial court's reasons for imposing a more severe sentence " ‘must affirmatively appear’ " and " ‘must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding’ " ( People v. Van Pelt, 76 N.Y.2d 156, 159, 556 N.Y.S.2d 984, 556 N.E.2d 423 [1990] [emphasis omitted], quoting North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 23 L.Ed.2d 656 [1969] ; see People v. Martinez, 26 N.Y.3d 196, 199, 21 N.Y.S.3d 196, 42 N.E.3d 693 [2015] ).
To the extent that defendant argues that the imposition of a harsher sentence upon retrial constitutes a violation of his due process rights under the Federal Constitution, such claim fails because the sentence upon retrial was imposed by a different judge (see Texas v. McCullough, 475 U.S. 134, 140, 106 S.Ct. 976, 89 L.Ed.2d 104 [1986] ; People v. Young, 94 N.Y.2d at 178, 701 N.Y.S.2d 309, 723 N.E.2d 58 ; People v. Ocampo, 52 A.D.3d 741, 742, 860 N.Y.S.2d 596 [2008], lv. denied 11 N.Y.3d 792, 866 N.Y.S.2d 618, 896 N.E.2d 104 [2008] ; People v. Carroll, 300 A.D.2d 911, 917, 753 N.Y.S.2d 148 [2002], lv. denied 99 N.Y.2d 626, 760 N.Y.S.2d 107, 790 N.E.2d 281 [2003] ). "As a matter of State constitutional law, however, [the fact] that ‘a different [j]udge impose[d] the second sentence is but a factor to be weighed with others in assaying whether the presumption has been overcome’ " ( People v. Young, 94 N.Y.2d at 178, 701 N.Y.S.2d 309, 723 N.E.2d 58, quoting People v. Van Pelt, 76 N.Y.2d at 161, 556 N.Y.S.2d 984, 556 N.E.2d 423 ). Here, the presumption of vindictiveness is overcome by County Court's on-the-record statement that, in imposing sentence, it had taken into consideration defendant's statements at sentencing—which the court found to be "painfully lacking [in] credibility"—and his "continued refusal to take responsibility for [his] actions" (see People
v. Hughes, 93 A.D.3d 889, 891, 940 N.Y.S.2d 183 [2012], lv. denied 19 N.Y.3d 961, 950 N.Y.S.2d 113, 973 N.E.2d 211 [2012] ; People v. Carroll, 300 A.D.2d at 917, 753 N.Y.S.2d 148 ; People v. Horning, 284 A.D.2d 916, 916, 728 N.Y.S.2d 319 [2001], lv. denied 97 N.Y.2d 705, 739 N.Y.S.2d 106, 765 N.E.2d 309 [2002] ; compare People v. Hilliard, 49 A.D.3d at 914–915, 853 N.Y.S.2d 198 ). The presumption of vindictiveness having been overcome, we see no reason to disturb the sentence imposed by County Court.
ORDERED that the judgment is affirmed.
PETERS, P.J., GARRY, ROSE and RUMSEY, JJ., concur.