People v. Jones

204 N.Y.S.3d 836

The PEOPLE of the State of New York, Respondent,

v.Chanon JONES, Defendant-Appellant.

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

Entered: February 9, 2024

Appeal from a judgment of the Supreme Court, Onondaga County (Gordon J. Cuffy, A.J.), rendered June 5, 2019. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree.

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (J. SCOTT PORTER OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH J.P., CURRAN, MONTOUR, NOWAK, AND KEANE, 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 criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]) and criminal possession of a controlled substance in the fourth degree (§ 220.09 [1]), arising from defendant’s involvement in a narcotics trafficking operation that was conducted out of a house. We affirm.

[1] Contrary to defendant’s contention, Supreme Court properly refused to suppress evidence recovered upon execution of the challenged search warrants. Upon our review of the record, we conclude that "the in camera testimony of the confidential informant at the Darden hearing established that the confidential informant existed and imparted to the police the information referred to in the search warrant application" (People v. Hernandez, 143 A.D.3d 1280, 1281, 38 N.Y.S.3d 500 [4th Dept. 2016], lv denied 29 N.Y.3d 1080, 64 N.Y.S.3d 170, 86 N.E.3d 257-[2017]; see People v. Ross, 185 A.D.3d 1537, 1538, 128 N.Y.S.3d 747 [4th Dept. 2020], lv denied 35 N.Y.3d 1115, 133 N.Y.S.3d 516, 158 N.E.3d 533 [2020]). We further conclude that "the hearsay information supplied in the search warrant application satisfied the two prongs of the Aguilar-Spinelli test and that the search warrant[s] w[ere] issued upon probable cause" (People v. Mitchum, 130 A.D.3d 1466, 1468, 12 N.Y.S.3d 749 [4th Dept. 2015]; see People v. Monroe, 82 A.D.3d 1674, 1675, 919 N.Y.S.2d 666 [4th Dept. 2011], lv denied 17 N.Y.3d 808, 929 N.Y.S.2d 568, 953 N.E.2d 806 [2011]; People v. Flowers, 59 A.D.3d 1141, 1142-1143, 873 N.Y.S.2d 413 [4th Dept. 2009]).

[2–4] Defendant next raises several challenges to the court’s evidentiary rulings. "Generally, ‘all relevant evidence is admissible unless its admission violates some exclusionary rule’ " (People v. Harris, 26 N.Y.3d 1, 5, 18 N.Y.S.3d 583, 40 N.E.3d 560 [2015], quoting People v. Scarola, 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728 [1988]). "Evidence is relevant if it has any tendency in reason to prove the existence of any material fact" (Scarola, 71 N.Y.2d at 777, 530 N.Y.S.2d 83, 525 N.E.2d 728). However, "[e]ven where relevant evidence is admissible, it may still be excluded in the exercise of the trial court’s discretion if its probative value is substantially outweighed by the potential for prejudice" (People v. Mateo, 2 N.Y.3d 383, 424-425, 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]; see Harris, 26 N.Y.3d at 5, 18 N.Y.S.3d 583, 40 N.E.3d 560; Scarola, 71 N.Y.2d at 777, 530 N.Y.S.2d 83, 525 N.E.2d 728).

[5] Defendant contends that the court abused its discretion in admitting in evidence the search warrants and testimony that defendant was a target of the search warrants, the execution of which was considered high-risk and involved the use of SWAT techniques to enter the house. We reject that contention inasmuch as that evidence was relevant and, contrary to defendant’s assertion, "it was not so inflammatory that its prejudicial effect exceeded its probative-value" (People v. Spencer, 181 A.D.3d 1257, 1262, 120 N.Y.S.3d 536 [4th Dept. 2020], lv denied, 35 N.Y.3d 1029, 126 N.Y.S.3d 23, 149 N.E.3d 861 [2020]).

[6] As defendant correctly concedes, he failed to preserve for our review his contention that the People improperly elicited Molineux evidence through a detective’s fleeting reference during his testimony to the involvement of defendant and other individuals in prior drug sales at the house, inasmuch as he failed to object to that testimony (see People v. Campbell, 182 A.D.3d 1004, 1005-1006, 123 N.Y.S.3d 316 [4th Dept. 2020], lv denied 35 N.Y.3d 1043, 127 N.Y.S.3d 828, 151 N.E.3d 509 [2020]; People v. Sumpter, 199 A.D.2d 1042, 1042, 606 N.Y.S.2d 116 [4th Dept. 1993], lv denied 83 N.Y.2d 859, 612 N.Y.S.2d 391, 634 N.E.2d 992 [1994]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; Sumpter, 199 A.D.2d at 1042, 606 N.Y.S.2d 116).

[7] Defendant further contends that he was prejudiced when the detective; in the course of identifying the other individuals implicated in the drug trafficking operation to whom defendant had referred by their nicknames in a recorded jail telephone call, testified in response to a question by the prosecutor that he was familiar with the individuals associated with those nicknames based, in relevant part, on his 10 years of experience as a police officer. According to defendant, that testimony was prejudicial to him because it implied that he was affiliated with individuals who were familiar to the police from prior contacts outside of the present investigation. We conclude, however, that the court sufficiently "alleviated any prejudice by striking the question and response and instructing the jury that they were not to be considered evidence" (People v. Hilton, 185 A.D.3d 1147, 1149, 126 N.Y.S.3d 242 [3d Dept. 2020], lv denied 35 N.Y.3d 1095, 131 N.Y.S.3d 302, 155 N.E.3d 795 [2020]; see People v. Hernandez, 227 A.D.2d 162, 162-163, 642 N.Y.S.2d 634 [1st Dept. 1996]; see generally People v. Young, 48 N.Y.2d 995, 996, 425 N.Y.S.2d 546, 401 N.E.2d 904 [1980], rearg dismissed 60 N.Y.2d 644, 467 N.Y.S.2d 1032, 455 N.E.2d 488 [1983]; People v. Resto, 147 A.D.3d 1331, 1333, 47 N.Y.S.3d 522 [4th Dept. 2017], lv denied 29 N.Y.3d 1000, 57 N.Y.S.3d 722, 80 N.E.3d 415 [2017], reconsideration denied 29 N.Y.3d 1094, 63 N.Y.S.3d 10, 85 N.E.3d 105 [2017]).

[8] As defendant correctly acknowledges, the court properly "receive[d] opinion testimony of a police officer qualified as a narcotics expert on matters concerning drug transactions not within the common experience or knowledge of the average juror" (People v. Hartzog, 15 A.D.3d 866, 866-867, 789 N.Y.S.2d 391 [4th Dept. 2005], lv denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679 [2005]; see People v. Hicks, 2 N.Y.3d 750, 751, 778 N.Y.S.2d 745, 811 N.E.2d 7 [2004]). Defendant failed to preserve for our review his contention that the testimony of the narcotics expert exceeded permissible bounds in this case (see GPL 470.05 [2]; People v. Thompson, 51 A.D.3d 500, 501, 857 N.Y.S.2d 561 [1st Dept. 2008], lv denied 11 N.Y.3d 742, 864 N.Y.S.2d 400, 894 N.E.2d 664 [2008]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; Thompson, 51 A.D.3d at 501, 857 N.Y.S.2d 561).

[9–11] To the extent that defendant contends that the court erred in denying his motion for a mistrial after it was revealed during trial that a hidden camera that the police had used for surveillance of the front exterior of the house had failed to record several weeks of data, including the day the police searched the house, we conclude that defendant’s contention lacks merit. It is within the sound discretion of the trial court to determine the appropriate sanction for the loss of evidence (see People v. Kelly, 62 N.Y.2d 516, 521, 478 N.Y.S.2d 834, 467 N.E.2d 498 [1984]), and " ‘[g]iven that the exculpatory value of the missing evidence is completely speculative ..the court did not abuse its discretion in imposing the lesser sanction’ of a permissive adverse inference instruction" (People v. Grovner, 206 A.D.3d 1638, 1641, 168 N.Y.S.3d 606 [4th Dept. 2022], lv denied 38 N.Y.3d 1150, 174 N.Y.S.3d 20, 194 N.E.3d 727 [2022]; see People v. Rice, 75 N.Y.2d 929, 932-933, 555 N.Y.S.2d 677, 554 N.E.2d 1265 [1990]). To the extent that defendant contends that he was prejudiced by the testimony of a prosecution witness about the duration that the house had been under surveillance and by a comment made by the prosecutor on summation about the lost surveillance evidence, we conclude that defendant’s contention is not preserved for our review because defendant raised no objection thereto (see CPL 470.05 [2]; People v. Wallace, 149 A.D.3d 878, 878-879, 51 N.Y.S.3d 606 [2d Dept. 2017], lv denied 30 N.Y.3d 1023, 70 N.Y.S.3d 456, 93 N.E.3d 1220 [2017]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

We reject defendant’s contention that he was denied effective assistance of counsel. Defendant has not demonstrated the absence of a legitimate explanation for counsel’s alleged error in failing to move to reopen the suppression hearing after the People disclosed that the police had not conducted on-site surveillance of the house but had instead conducted live video surveillance from a remote location and that, the surveillance evidence had been lost (see People v. Gray, 27 N.Y.3d 78, 83-84, 29 N.Y.S.3d 888, 49 N.E.3d 1180 [2016]; People v. Person, 153 A.D.3d 1561, 1564, 62 N.Y.S.3d 231 [4th Dept. 2017], lv denied 30 N.Y.3d 1118, 77 N.Y.S.3d 343, 101 N.E.3d 984 [2018]). We conclude that the record, viewed as a whole, demonstrates that defense counsel provided meaningful representation (see People v. Flagg, 167 A.D.3d 165, 170, 87 N.Y.S.3d 781 [4th Dept. 2018]; see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d...