Opinion
105998
07-30-2015
The PEOPLE of the State of New York, Respondent, v. Ritchie DeCARR, Appellant.
Cynthia Feathers, Glens Falls, for appellant, and appellant pro se. Glenn MacNeill, District Attorney, Malone (Jennifer M. Hollis of counsel), for respondent.
Cynthia Feathers, Glens Falls, for appellant, and appellant pro se.
Glenn MacNeill, District Attorney, Malone (Jennifer M. Hollis of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, GARRY and LYNCH, JJ.
Opinion
LAHTINEN, J.Appeal from a judgment of the County Court of Franklin County (Catena, J.), rendered April 15, 2013, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree (two counts).
Defendant was allegedly involved in two cocaine transactions, one on May 31, 2012 with a confidential informant (hereinafter CI) and another on June 7, 2012 where the CI was accompanied by an undercover police officer. He was charged by indictment with criminal sale of a controlled substance in the third degree, one count for each date, and criminal possession of a controlled substance in the third degree, one count for each date. Following a trial at which defendant testified, a jury acquitted him of the sale count from May 31, 2012 (count 1 of the indictment), but found him guilty of the remaining three counts. County Court sentenced him, as a second felony drug offender, to three concurrent terms of six years in prison together with postrelease supervision.
Defendant argues that County Court erred in allowing a police officer to testify that the CI informed him that she could buy drugs from defendant. We are unpersuaded. This proof “demonstrated how defendant became the target of the investigation and provided important background information” (People v. Sudler, 75 A.D.3d 901, 905, 906 N.Y.S.2d 373 [2010], lv. denied 15 N.Y.3d 956, 917 N.Y.S.2d 116, 942 N.E.2d 327 [2010] ; see People v.
Graves, 194 A.D.2d 925, 926, 598 N.Y.S.2d 855 [1993], lv. denied 82 N.Y.2d 719, 602 N.Y.S.2d 816, 622 N.E.2d 317 [1993] ), and it was “admitted not for its truth but for the narrow purpose of explaining an officer's actions and the sequence of events in an investigation” (People v. Gregory, 78 A.D.3d 1246, 1246, 910 N.Y.S.2d 295 [2010], lv. denied 16 N.Y.3d 831, 921 N.Y.S.2d 195, 946 N.E.2d 183 [2011] ). Moreover, County Court gave proper limiting instructions to the jury regarding such proof (see People v. Stevens, 87 A.D.3d 754, 756, 928 N.Y.S.2d 146 [2011], lv. denied 18 N.Y.3d 861, 938 N.Y.S.2d 868, 869, 962 N.E.2d 293, 294 [2011] ; People v. Gregory, 78 A.D.3d at 1247, 910 N.Y.S.2d 295 ).
Next, we consider defendant's contention that reversible error occurred when the CI, on re-direct examination and over an objection, testified that she had previously smoked crack cocaine with defendant. “[T]he familiar Molineux rule states that evidence of a defendant's uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate the defendant's propensity to commit the crime charged” (People v. Cass, 18 N.Y.3d 553, 559, 942 N.Y.S.2d 416, 965 N.E.2d 918 [2012] ). Where a defendant creates a misleading perception based on the excluded proof, the door may be opened to such proof (see People v. Rojas, 97 N.Y.2d 32, 34, 735 N.Y.S.2d 470, 760 N.E.2d 1265 [2001] ; People v. Mitchell, 112 A.D.3d 1071, 1073, 977 N.Y.S.2d 136 [2013], lv. denied 22 N.Y.3d 1140, 983 N.Y.S.2d 498, 6 N.E.3d 617 [2014] ; People v. Daniels, 103 A.D.3d 807, 808, 962 N.Y.S.2d 177 [2013], lv. denied 21 N.Y.3d 942, 968 N.Y.S.2d 4, 990 N.E.2d 138 [2013] ). Defense counsel indicated in his opening statement that the CI was an experienced cocaine user who lured him into the transaction using his infatuation with her, and did so to gain favor with police for her own legal problems. Defense counsel cross-examined the CI extensively about her prior cocaine use. The combination of the theory urged in opening and cross-examination of the CI opened the door for the People to clarify on re-direct that the CI's cocaine use had, in fact, been with defendant (see People v. Rojas, 97 N.Y.2d at 34, 735 N.Y.S.2d 470, 760 N.E.2d 1265 ). County Court gave appropriate limiting instructions regarding this proof both when offered and in its charge (see People v. Bellamy, 118 A.D.3d 1113, 1116–1117, 987 N.Y.S.2d 666 [2014], lv. denied 25 N.Y.3d 1159, 15 N.Y.S.3d 292, 36 N.E.3d 95 [2015] ; People v. Reid, 97 A.D.3d 1037, 1038, 949 N.Y.S.2d 257 [2012], lv. denied 19 N.Y.3d 1104, 955 N.Y.S.2d 560, 979 N.E.2d 821 [2012] ). We do agree with defendant, however, that the CI improperly expanded her testimony to give an unnecessary and detailed description of the physical effects of the cocaine on defendant that she had observed when they smoked it together, but this error “ ‘was harmless since there was no significant probability that defendant would have been acquitted’ had this evidence not been admitted at trial” (People v. Wright, 88 A.D.3d 1154, 1157–1158, 931 N.Y.S.2d 727 [2011], lv. denied 18 N.Y.3d 863, 938 N.Y.S.2d 871, 962 N.E.2d 296 [2011], quoting People v. Tatro, 53 A.D.3d 781, 785, 862 N.Y.S.2d 154 [2008], lv. denied 11 N.Y.3d 835, 868 N.Y.S.2d 610, 897 N.E.2d 1094 [2008] ).
The conviction for possessing cocaine on May 31, 2012 (count 2) was not against the weight of the evidence. Where, as here, a different verdict would not have been unreasonable, we “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony while viewing the evidence in a neutral light and giving deference to the jury's credibility assessments” (People v. Gaudiosi, 110 A.D.3d 1347, 1348, 973 N.Y.S.2d 855 [2013], lv. denied 22 N.Y.3d 1040, 981 N.Y.S.2d 374, 4 N.E.3d 386 [2013] [internal quotation marks and citations omitted] ). Although defendant was acquitted of the sale count from May 31, 2012, “a defendant's acquittal on the sale count does not negate the elements of the possession count, for a person can possess and intend to sell a narcotic drug, but not actually accomplish a sale” (People v. Kramer, 118 A.D.3d 1040, 1043, 989 N.Y.S.2d 143 [2014] [internal quotation marks, brackets and citation omitted] ). When the CI went to defendant's residence on May 31, 2012, she went alone, unlike the June 7, 2012 transaction where she was accompanied by an undercover officer. The CI was wearing a wire on May 31, 2012, but the recording was not of sufficient quality to indicate defendant's involvement in a transaction. The elements of both crimes charged for May 31, 2012 thus rested in large part on the credibility of the CI's testimony. Defendant testified and, although he did not directly address possessing cocaine on May 31, 2012, he explicitly denied selling any cocaine on such date. The jury accepted the proof regarding possession but discredited the CI's claim regarding a consummated sale on May 31, 2012 (see People v. Mendoza, 300 A.D.2d 824, 825, 752 N.Y.S.2d 437 [2002], lv. denied 99 N.Y.2d 617, 757 N.Y.S.2d 828, 787 N.E.2d 1174 [2003] ). We discern no reason to disregard those credibility determinations and, upon reviewing the proof in the record, the jury's conviction of defendant on count 2 is supported by the weight of the evidence.
The failure to request an entrapment charge did not constitute ineffective assistance of counsel. “It is well settled that to prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's failure. Absent such a showing, it will be presumed that counsel acted in a competent manner and exercised professional judgment” (People v. Barboni, 21 N.Y.3d 393, 405–406, 971 N.Y.S.2d 729, 994 N.E.2d 820 [2013] [internal quotation marks, ellipsis and citations omitted] ). Entrapment is an affirmative defense (see Penal Law § 40.05 ) that defendant must prove by a preponderance of the evidence (see Penal Law § 25[2] ). “A defendant thus assumes a substantial burden in asserting entrapment ... [including] prov[ing] that he or she had no disposition to commit the acts charged” (People v. DeGina, 72 N.Y.2d 768, 775, 537 N.Y.S.2d 8, 533 N.E.2d 1037 [1988] [citation omitted] ). Given the difficulty faced by defendant—who had a prior misdemeanor drug possession conviction—in attempting to prove that he had no disposition to possess or sell cocaine, together with potential additional evidence that might have been produced by the People to address such a claim, we cannot conclude that there was no legitimate strategy for the course chosen by counsel. The other purported shortcomings by counsel do not reveal a lack of meaningful representation. In fact, in addition to getting an acquittal on one of the four counts, the record further reflects that counsel “articulated a logical defense theory at trial, raised relevant objections, effectively cross-examined the People's witnesses and otherwise zealously represented defendant” (People v. Bateman, 124 A.D.3d 983, 986, 999 N.Y.S.2d 614 [2015], lv. denied 25 N.Y.3d 949, 7 N.Y.S.3d 278, 30 N.E.3d 169 [2015] ). The remaining arguments, including the pro se submissions by defendant, have been considered and are unavailing.ORDERED that the judgment is affirmed.
PETERS, P.J., GARRY and LYNCH, JJ., concur.