People v. Cooley

149 A.D.3d 1268, 52 N.Y.S.3d 528
Appellate Division of the Supreme Court of the State of New York·Decided April 13, 2017·Published·Cited by 19 cases

Opinion

Mulvey, J.

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered July 24, 2014, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree.

In July 2013, members of the City of Albany Police Department conducted a controlled buy in which a confidential informant (hereinafter Cl) purchased cocaine from defendant. Defendant was charged in an indictment with criminal sale of a controlled substance in the third degree. Following a jury trial, defendant was convicted as charged and subsequently sentenced to seven years in prison followed by three years of postrelease supervision. Defendant appeals. We affirm.

Defendant contends that the jury’s verdict was against the weight of the evidence, noting that contemporaneous audio and video recordings of the transaction, played for the jury, did not [1269] confirm the testimony by the CL Specifically, defendant argues that the audio recording was so inaudible that it did not prove that a transaction took place and that the video recording does not show defendant taking any cash or handing narcotics to the CL In an analysis of whether a verdict is against the weight of the evidence, we first determine whether a different finding would not have been unreasonable, and, if not, we then “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” to determine whether the trier of fact accorded proper weight to the evidence (People v Mateo, 2 NY3d 383, 410 [2004] [internal quotation marks and citations omitted], cert denied 542 US 946 [2004]). This analysis entails “viewing the evidence in a neutral light and giving deference to the jury’s credibility assessments” (People v Crooks, 129 AD3d 1207, 1208 [2015] [citation omitted], affd 27 NY3d 609 [2016]; see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Lancaster, 143 AD3d 1046, 1048-1049 [2016], lv denied 28 NY3d 1147 [2017]).

The People were required to prove that defendant knowingly and unlawfully sold a narcotic drug (see Penal Law § 220.39 [1]). The trial testimony established that the police took several measures to assure that the Cl was not concealing any drugs or currency before he approached the prearranged location for the transaction with defendant. The Cl wore a concealed audio recording device and carried recorded US currency. The officers were stationed at various locations near the transaction site and observed the Cl engage in a hand-to-hand exchange with defendant. When the Cl returned to the police officers, he was in possession of a bag containing a white rock-like substance that was later tested and confirmed to be cocaine. Defendant testified that his transaction with the Cl was for the purchase of a ring, not narcotics, and that no narcotics changed hands. He also presented a witness who testified that she attended the meeting with the Cl for the purpose of providing advice to defendant about the ring and that she saw the Cl produce a ring.

Although the jury could have credited defendant’s testimony over that of the Cl, we afford “deference to the jury’s superior ability to evaluate credibility” (People v Gamble, 135 AD3d 1078, 1080 [2016] [internal quotation marks and citation omitted], lv denied 27 NY3d 997 [2016]; see People v Bleakley, 69 NY2d 490, 495 [1987]). We discern nothing in the testimony and evidence presented that would render the Cl’s testimony incredible as a matter of law (see People v Miles, 61 AD3d 1118, [1270]*12701119 [2009], lv denied 12 NY3d 918 [2009]) and note that there is no indication that either the video or audio recordings contradicted any of the People’s proof. Viewing the evidence in a neutral light, considering the elements of the charged crime and deferring to the jury’s credibility assessments, we conclude that the verdict is supported by the weight of the evidence (see People v Bleakley, 69 NY2d at 495; People v Lancaster, 143 AD3d at 1049).

Defendant next contends that County Court erred in declining to hold a Wade hearing to test the Cl’s identification of defendant. “ ‘[A] Wade hearing is not required when the witness is so familiar with the defendant that there is little or no risk that police suggestion could lead to a misidentification’ ” (People v Smith, 137 AD3d 1323, 1326 [2016], lv denied 28 NY3d 974 [2016], quoting People v Casanova, 119 AD3d 976, 980 [2014]). A Rodriguez hearing was held to establish that the Cl’s identification of defendant was merely confirmatory and not subject to the notice and hearing requirements of CPL 710.30 (see People v Rodriguez, 79 NY2d 445, 453 [1992]). Prior to the transaction, a police officer showed the Cl a photo of defendant. The Cl affirmed the identity of defendant as an individual he had known for several years and furnished additional descriptive information regarding defendant’s height, weight, hairstyle and model of car that he drove. We agree with County Court that sufficient details were furnished by the Cl to establish that any photo identification would be confirmatory, and “that there [was] little or no risk that police suggestion could lead to a misidentification” (People v Carter, 57 AD3d 1017, 1017 [2008] [internal quotation marks and citations omitted], lv denied 12 NY3d 781 [2009]).

Nor do we discern any error in County Court’s Sandoval ruling. Proof of eight prior convictions over a five-year period was proffered by the People, and County Court permitted inquiry regarding only two misdemeanors (criminal possession of a weapon in 2008 and assault in the third degree in 2010) and one felony conviction (burglary in the third degree in 2010), specifying that defendant could be asked on cross-examination if he was convicted on those dates without inquiring about the nature of the charges or the underlying facts. The court ruled that the People could only explore further if defendant denied the convictions. We find that County Court “properly balanced the probative value of defendant’s prior convictions against the risk of prejudice to defendant” (People v Victor, 139 AD3d 1102, 1110 [2016], lv denied 28 NY3d 1076 [2016]), as the convictions were recent, dissimilar from the charged crime and were proba[1271] tive of defendant’s credibility and willingness to put his interests above that of the community (see People v Sandoval, 34 NY2d 371, 376-378 [1974]; People v Mould, 143 AD3d 1186, 1188 [2016], lv denied 28 NY3d 1187 [2017]).

Free access — add to your briefcase to read the full text and ask questions with AI

People v. Cooley, 149 A.D.3d 1268, 52 N.Y.S.3d 528 (N.Y. Ct. App. 2017).

149 A.D.3d 1268 (People v. Cooley) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

People v. Stansberry
2024 NY Slip Op 00946 (Appellate Division of the Supreme Court of New York, 2024)
People v. Horton
2020 NY Slip Op 1530 (Appellate Division of the Supreme Court of New York, 2020)
People v. Sindoni
2019 NY Slip Op 8731 (Appellate Division of the Supreme Court of New York, 2019)
People v. Cowan
2019 NY Slip Op 53936 (Appellate Division of the Supreme Court of New York, 2019)
People v. Lanham
2019 NY Slip Op 7905 (Appellate Division of the Supreme Court of New York, 2019)
People v. Scott
2019 NY Slip Op 5589 (Appellate Division of the Supreme Court of New York, 2019)
People v. Arhin
2018 NY Slip Op 7199 (Appellate Division of the Supreme Court of New York, 2018)
People v. Gresham
2018 NY Slip Op 4986 (Appellate Division of the Supreme Court of New York, 2018)
People v. Nunez
2018 NY Slip Op 2686 (Appellate Division of the Supreme Court of New York, 2018)
People v. Miller
2018 NY Slip Op 2364 (Appellate Division of the Supreme Court of New York, 2018)
People v. Palin
2018 NY Slip Op 1092 (Appellate Division of the Supreme Court of New York, 2018)
People v. Delayo
2018 NY Slip Op 577 (Appellate Division of the Supreme Court of New York, 2018)
People v. Williams
2017 NY Slip Op 9196 (Appellate Division of the Supreme Court of New York, 2017)
People v. Kiah
2017 NY Slip Op 8752 (Appellate Division of the Supreme Court of New York, 2017)
People v. Shortell
2017 NY Slip Op 8410 (Appellate Division of the Supreme Court of New York, 2017)
People v. Devictor-Lopez
2017 NY Slip Op 8408 (Appellate Division of the Supreme Court of New York, 2017)
People v. Keener
2017 NY Slip Op 5875 (Appellate Division of the Supreme Court of New York, 2017)
People v. Holmes
2017 NY Slip Op 4501 (Appellate Division of the Supreme Court of New York, 2017)