People v. Acevedo

• Decision Date: 14 July 2016
• Parties: The PEOPLE of the State of New York, Respondent, v. Efrain J. ACEVEDO III, Appellant.
• Court: New York Supreme Court — Appellate Division

141 A.D.3d 843

35 N.Y.S.3d 752

2016 N.Y. Slip Op. 05517

The PEOPLE of the State of New York, Respondent,

v.Efrain J. ACEVEDO III, Appellant.

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

July 14, 2016.

Danielle Neroni Reilly, Albany, for appellant.

P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.

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

ROSE

, J.

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered May 9, 2014, upon verdicts convicting defendant of the crimes of criminal possession of a controlled substance in the third degree and criminal possession of marihuana in the fourth degree.

On October 30, 2012, hospital staff at Albany Medical Center responded to a report of an odor of burning marihuana and traced that odor to defendant's room. When questioned by hospital security, defendant allegedly admitted to smoking marihuana and to having more of it in his backpack, prompting the search of his backpack and the discovery of more than two ounces of marihuana inside. Hospital security then searched defendant's jacket and discovered over one-half ounce of crack cocaine. Police officers were ultimately called to the hospital and discovered over $5,000 inside of defendant's pillowcase. As a result, defendant was charged in a four-count indictment with criminal possession of a controlled substance in the third degree (two counts), criminal possession of marihuana in the fourth degree and criminally using drug paraphernalia in the second degree. Following a jury trial, he was acquitted of one count of criminal possession of a controlled substance in the third degree, which required proof of his possession of crack with the intent to sell it. He was also acquitted of criminally using drug paraphernalia in the second degree and convicted of criminal possession of marihuana in the fourth degree. The jury was, however, unable to reach a verdict on the second count of criminal possession of a controlled substance in the third degree, which required proof that he possessed one-half ounce or more of crack. Following a second jury trial, defendant was convicted of that charge. He was subsequently sentenced to an aggregate prison term of three years, to be followed by two years of postrelease supervision. Defendant now appeals.

We find merit in defendant's contention that County Court erred in denying his request to charge the lesser included offense of unlawful possession of marihuana. The People properly concede that unlawful possession of marihuana is a lesser included offense of criminal possession of marihuana in the fourth degree (see Penal Law §§ 221.05

, 221.15 ). Thus, our inquiry distills to whether “ ‘there is a reasonable view of the evidence which would support a finding that ... defendant committed such lesser offense but did not commit the greater’ ” (People v. Colville, 20 N.Y.3d 20, 31, 955 N.Y.S.2d 799, 979 N.E.2d 1125 [2012], quoting CPL 300.50[1] ; see

People v. Williams, 138 A.D.3d 1233, 1237, 29 N.Y.S.3d 647 [2016] ). In evaluating this question, we must view the evidence in the light most favorable to defendant and assess whether “ ‘there is ... some identifiable, rational basis on which the jury could reject a portion of the prosecution's case which is indispensable to establishment of the higher crime and yet accept so much of the proof as would establish the lesser crime’ ” (People v. Rivera, 23 N.Y.3d 112, 121, 989 N.Y.S.2d 446, 12 N.E.3d 444 [2014], quoting People v. Scarborough, 49 N.Y.2d 364, 369–370, 426 N.Y.S.2d 224, 402 N.E.2d 1127 [1980] ; accord

People v. Grayson, 138 A.D.3d 1250, 1251, 29 N.Y.S.3d 663 [2016] ).

Here, we find that the jury could have accepted portions of each witness's testimony, while rejecting other portions, and arrived at the conclusion that defendant committed the lesser offense but not the greater. Based upon our review of the record, we find that the evidence of the odor of marihuana that led hospital staff to defendant's room plus his admission to smoking marihuana in his room could lead a rational factfinder to conclude that defendant possessed a small amount of marihuana that he had smoked in the hospital, but that he was not aware of the larger amount of marihuana that was discovered in his backpack that had been delivered to his room by family members after his admission to the hospital. Accordingly, we must reverse his conviction for criminal possession of marihuana in the fourth degree and remit for a new trial on that charge (see People v. Carota, 93 A.D.3d 1072, 1076, 941 N.Y.S.2d 302 [2012]

; People v. Rivera, 70 A.D.3d 1177, 1183–1184, 896 N.Y.S.2d 192 [2010], lv. denied 14 NY3d 855, 891, 903 N.Y.S.2d 780, 929 N.E.2d 1015 [2010]; People v. Ryan, 55 A.D.3d 960, 964, 865 N.Y.S.2d 146 [2008] ). As a result of this conclusion, defendant's remaining challenges to his conviction for criminal possession of marihuana in the fourth degree are rendered academic.

Turning to defendant's conviction of criminal possession of a controlled substance in the third degree, defendant contends that the People violated his equal protection rights pursuant to Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)

by using peremptory challenges to remove two nonwhite members of the second panel of prospective jurors¹ -namely, juror No. 2 and juror No. 14—and that County Court improperly compressed the Batson inquiry. When a party raises a Batson challenge, courts engage in a three-step process (see People v. Hecker, 15 N.Y.3d 625, 634–635, 917 N.Y.S.2d 39, 942 N.E.2d 248 [2010]

, cert. denied 563 U.S. 947, 131 S.Ct. 2117, 179 L.Ed.2d 911 [2011] ; People v. Smocum 99 N.Y.2d 418, 421–422, 757 N.Y.S.2d 239, 786 N.E.2d 1275 [2003] ). “At step one, the moving party bears the burden of establishing a prima facie case of discrimination in the exercise of peremptory challenges. Once a prima facie case of discrimination has been established, the burden shifts, at step two, to the nonmoving party to offer a facially neutral explanation for each suspect challenge. At the third step, the burden shifts back to the moving party to prove purposeful discrimination and the trial court must determine whether the proffered reasons are pretextual” (People v. Jones, 136 A.D.3d 1153, 1157–1158, 26 N.Y.S.3d 363 [2016] [internal quotation marks and citations omitted], lv. denied 27 N.Y.3d 1000, –––N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ; see

People v. Allen, 86 N.Y.2d 101, 109–110, 629 N.Y.S.2d 1003, 653 N.E.2d 1173 [1995] ). While the step-two determination focuses only on the facial neutrality of the explanation, the step-three determination “is a question of fact, focused on the credibility of the race-neutral reasons,” and it is incumbent on the moving party “to make a record that would support a finding of pretext” at step three (People v. Smocum, 99 N.Y.2d at 422, 757 N.Y.S.2d 239, 786 N.E.2d 1275 ; see

People v. James, 99 N.Y.2d 264, 271–272, 755 N.Y.S.2d 43, 784 N.E.2d 1152 [2002] ; People v. Payne, 88 N.Y.2d 172, 183–184, 643 N.Y.S.2d 949, 666 N.E.2d 542 [1996] ). Stated differently, after the trial court accepts the nonmoving party's race-neutral reasons, “the moving party must make a specific objection to the exclusion of any juror still claimed to have been the object of discrimination” (People v. James, 99 N.Y.2d at 272, 755 N.Y.S.2d 43, 784 N.E.2d 1152 ).

Inasmuch as the People offered facially race-neutral reasons for the use of their peremptory challenges at step two, the sufficiency of defendant's step one showing is now moot (see People v. Grafton, 132 A.D.3d 1065, 1067, 18 N.Y.S.3d 213 [2015]

, lv. denied 26 N.Y.3d 1145, 1147, 32 N.Y.S.3d 59, 51 N.E.3d 570 [2016] ; People v. Knowles, 79 A.D.3d 16, 20, 911 N.Y.S.2d 483 [2010], lv. denied 16 N.Y.3d 896, 926 N.Y.S.2d 32, 949 N.E.2d 980 [2011] ). As to juror No. 2, the People based their peremptory challenge on his perceived inattentiveness, explaining that they “had to get his attention several times” during voir dire and “dr[a]w him in” because “he was out in thought somewhere.” We are mindful that “[t]he explanation at step two is not required to be persuasive or even plausible; as long as the reasons for the challenges are facially neutral, even ill-founded reasons will suffice” (People v. Grafton, 132 A.D.3d at 1066, 18 N.Y.S.3d 213 [internal quotation marks and citations omitted]; see

People v. Smocum, 99 N.Y.2d at 422, 757 N.Y.S.2d 239, 786 N.E.2d 1275 ; People v. Allen, 86 N.Y.2d at 109–110, 629 N.Y.S.2d 1003, 653 N.E.2d 1173 ). Here, the People's explanation was facially neutral, as it reflected their concern regarding juror No. 2's inattentive demeanor (see

People v. Miles, 55 A.D.3d 307, 308, 864 N.Y.S.2d 28 [2008], lv. denied 11 N.Y.3d 928, 874 N.Y.S.2d 13, 902 N.E.2d 447 [2009] ).

Regarding juror No. 14, the People stated that they did not want her on the jury because she believed that “she was a victim of racial profiling.” Contrary to defendant's argument on appeal, the record establishes that juror No. 14's statement was in response to a race-neutral question posed by the People—specifically, whether she felt “like [she was] targeted or ... that [she] caught a break,” when she had previously been accused of a crime that was ultimately dismissed—and it was the juror herself who interjected the element of race into her answer (compare People v. Mallory, 121 A.D.3d 1566, 1567, 993 N.Y.S.2d 609 [2014]

).² Thus, here too, the People's proffered reason was sufficient to shift the burden to defendant, as it was “ based on something other than the race of” juror No. 14 (People v. Hecker, 15 N.Y.3d at 655, 917 N.Y.S.2d 39, 942 N.E.2d 248 [internal quotation marks and citation omitted]; see

People v. Allen, 86 N.Y.2d at 110, 629 N.Y.S.2d 1003, 653 N.E.2d 1173 ).

Following the People's step-two proffer, County Court denied the Batson challenge, without any attempt to respond or protestation registered by defendan...