People v. Gethers

151 A.D.3d 1398

58 N.Y.S.3d 640

The PEOPLE of the State of New York, Respondent,

v.Terrence GETHERS, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

June 22, 2017.

Stephen W. Herrick, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.

P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.

Before: McCARTHY, J.P., ROSE, DEVINE, CLARK and MULVEY, JJ.

CLARK, J.

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered May 19, 2015, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the second degree (three counts).

In March 2014, defendant was indicted on three counts of criminal sale of a controlled substance in the second degree, stemming from three occasions when he offered to sell more than one half of an ounce of crack cocaine to a confidential informant (hereinafter CI) during separate controlled buy operations. Following a jury trial, defendant was convicted as charged, and County Court sentenced him, as a second felony drug offender, to three concurrent prison terms of 10 years, followed by five years of postrelease supervision. Defendant appeals, and we affirm.

Defendant argues that the verdict is unsupported by legally sufficient evidence and is against the weight of the evidence. A challenge to the legal sufficiency of the evidence supporting a guilty verdict requires this Court to view the evidence in the light most favorable to the People and to evaluate "whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [internal citation omitted]; see People v. Lynch, 95 N.Y.2d 243, 247, 715 N.Y.S.2d 691, 738 N.E.2d 1172 [2000] ). By contrast, a weight of the evidence review requires this Court to make a threshold determination as to whether a different conclusion would have been unreasonable given all of the credible evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 [2004], cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828 [2004] ). Where a different conclusion would not have been unreasonable, the Court " ‘must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ " ( People v. Perser, 67 A.D.3d 1048, 1049, 889 N.Y.S.2d 107 [2009], lv. denied 13 N.Y.3d 941, 895 N.Y.S.2d 332, 922 N.E.2d 921 [2010], quoting People v. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ; see People v. Cahill, 2 N.Y.3d 14, 58, 777 N.Y.S.2d 332, 809 N.E.2d 561 [2003] ).

As relevant here, "[a] person is guilty of criminal sale of a controlled substance in the second degree when he [or she] knowingly and unlawfully sells ... one or more preparations, compounds, mixtures or substances containing a narcotic drug ... of an aggregate weight of one-half ounce or more" ( Penal Law § 220.41[1] ). Under Penal Law § 220.00(1), a criminal sale includes an offer to sell or exchange drugs; thus, there is no requirement that an offer to sell or exchange drugs be consummated to sustain a conviction for criminal sale of a controlled substance (see People v. Samuels, 99 N.Y.2d 20, 24, 750 N.Y.S.2d 828, 780 N.E.2d 513 [2002] ; People v. Mike, 92 N.Y.2d 996, 998, 684 N.Y.S.2d 165, 706 N.E.2d 1189 [1998] ). "However, in order to support a conviction under an offering for sale theory, there must be evidence of a bona fide offer to sell—i.e., that [the] defendant had both the intent and ability to proceed with the sale" ( People v. Mike, 92 N.Y.2d at 998, 684 N.Y.S.2d 165, 706 N.E.2d 1189 [citations omitted]; accord People v. Magee, 135 A.D.3d 1176, 1177, 23 N.Y.S.3d 468 [2016] ; People v. Crampton, 45 A.D.3d 1180, 1181, 845 N.Y.S.2d 877 [2007], lv. denied 10 N.Y.3d 861, 860 N.Y.S.2d 487, 890 N.E.2d 250 [2008] ). "Because intent is an invisible operation of the mind" and direct evidence of intent is often unavailable, it may be inferred from the circumstances, including a defendant's statements and conduct ( People v. Rodriguez, 17 N.Y.3d 486, 489, 933 N.Y.S.2d 631, 957 N.E.2d 1133 [2011] [internal quotation marks, brackets and citation omitted]; see People v. Magee, 135 A.D.3d at 1177, 23 N.Y.S.3d 468 ).

Here, the record evidence demonstrated that, prior to all three sales, the CI made controlled phone calls to defendant in the presence of special agents employed by the Drug Enforcement Agency (hereinafter DEA) to arrange for the purchase and sale of more than one-half ounce of crack cocaine on each occasion. In these calls, defendant—whose voice was identified by one of the DEA agents (see People v. Gray, 57 A.D.3d 1473, 1475, 870 N.Y.S.2d 672 [2008], lv. denied 12 N.Y.3d 854, 881 N.Y.S.2d 665, 909 N.E.2d 588 [2009] )—and the CI agreed on a price and amount for the crack cocaine and arranged to meet at specified locations to complete the sales. While the CI and defendant used coded language during these calls to discuss the price and amount of the cocaine, the DEA agent that was primarily involved in the controlled buy operations testified as to the meaning of the coded language and such language corresponded with the amount of premarked buy money that was ultimately provided to the CI. In addition, testimony given by the DEA agents involved in the controlled buy operations established that the CI was searched prior to each sale, provided with premarked buy money and an audio recording device to record the sales,¹ surveilled throughout the entirety of each sale and did not interact with anyone other than defendant. Testimony from DEA agents also established that, prior to each sale, defendant was observed either walking or driving from his home to the prearranged buy locations, where he would only briefly meet with the CI in the CI's vehicle. Their testimony further demonstrated that the CI was searched following each sale and found to be—on each occasion—without the premarked buy money, but in possession of more than a half ounce of a substance that later tested positive for cocaine. Finally, a DEA agent testified that, on those occasions that defendant drove to the prearranged location, the vehicle used by defendant was either registered to him or rented by him. While the CI did not testify,² AND THE SALES Were not directly observed by the dea agents involVED, we are nonetheless satisfied that the foregoing evidence was legally sufficient to support the jury's conclusion that defendant offered to sell the CI crack cocaine weighingmore than one-half ounce on three occasions and had both the intent and ability to proceed with those sales (see People v. Magee, 135 A.D.3d at 1177–1180, 23 N.Y.S.3d 468 ; compare People v. Samuels, 99 N.Y.2d at 24, 750 N.Y.S.2d 828, 780 N.E.2d 513 ). While an acquittal would not have been unreasonable given the absence of the CI's testimony, we are similarly satisfied that the verdict is not against the weight of the evidence (see People v. Williams, 138 A.D.3d 1233, 1236, 29 N.Y.S.3d 647 [2016], lvs. denied 28 N.Y.3d 932, 40 N.Y.S.3d 360, 63 N.E.3d 80 [2016], 28 N.Y.3d 939, 40 N.Y.S.3d 366, 63 N.E.3d 86 [2016] ; People v. Magee, 135 A.D.3d at 1177–1180, 23 N.Y.S.3d 468 ). Next, County Court did not abuse its discretion in reaching a Sandoval compromise. Of the three prior convictions that the People sought permission to question defendant about, if he testified, County Court barred inquiry into one of the convictions entirely, but ruled that the People could engage in a limited inquiry as to whether defendant was previously convicted of two prior felony offenses, without specifying the nature of the underlying crimes.³ Although these two felony convictions were remote in time, "there is no bright-line rule of exclusion based upon age of conviction" ( People v. Wilson, 78 A.D.3d 1213, 1216, 910 N.Y.S.2d 276 [2010], lv. denied 16 N.Y.3d 747, 917 N.Y.S.2d 628, 942 N.E.2d 1053 [2011] ; see People v. Portis, 129 A.D.3d 1300, 1303, 12 N.Y.S.3d 328 [2015], lvs. denied 26 N.Y.3d 1088, 23 N.Y.S.3d 644, 44 N.E.3d 942 [2015], 26 N.Y.3d 1091, 23 N.Y.S.3d 648, 44 N.E.3d 946 [2015] ). Further, the court reasonably concluded that the two prior felony convictions, which were drug-related, were probative of defendant's credibility because they demonstrated defendant's willingness to place his interests above that of society, but that the prejudicial effect of allowing specific inquiry into these crimes would far outweigh any such probative value (see People v. Jackson, 100 A.D.3d 1258, 1261, 954 N.Y.S.2d 679 [2012], lv. denied 21 N.Y.3d 1005, 971 N.Y.S.2d 256, 993 N.E.2d 1279 [2013] ; People v. Gangar, 79 A.D.3d 1262, 1263–1264, 912 N.Y.S.2d 321 [2010], lv. denied 16 N.Y.3d 831, 921 N.Y.S.2d 195, 946 N.E.2d 183 [2011] ). Accordingly, as County Court struck an appropriate balance in its Sandoval ruling, the ruling did not constitute an abuse of discretion (see People v. Nichol, 121 A.D.3d 1174, 1175–1176, 994 N.Y.S.2d 691 [2014], lv. denied 25 N.Y.3d 1205, 16 N.Y.S.3d 527, 37 N.E.3d 1170 [2015] ; People v. Phillips, 96 A.D.3d 1154, 1156–1157, 946 N.Y.S.2d 668 [2012], lv. denied 19 N.Y.3d 1000, 951 N.Y.S.2d 476, 975 N.E.2d 922 [2012] ).

Nor was defendant denied a fair trial because one of the DEA agents testified, while being cross-examined by defendant, that defendant "was adept at hiding stuff" because he had been "charged with introducing items into a jail facility." While "[e]vidence of prior bad acts or uncharged crimes may be admitted when it falls within the list of recognized Molineux exceptions,...