People v. Brandon

• Decision Date: 05 November 2015
• Parties: The PEOPLE of the State of New York, Respondent, v. Chamma BRANDON, Also Known as Kareem, Appellant.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 901
20 N.Y.S.3d 432

The PEOPLE of the State of New York, Respondent,
v.
Chamma BRANDON, Also Known as Kareem, Appellant.

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

Nov. 5, 2015.

20 N.Y.S.3d 433

Lisa A. Burgess, Indian Lake, for appellant, and appellant pro se.

Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, McCARTHY and LYNCH, JJ.

LYNCH, J.

133 A.D.3d 901

Appeals (1) from a judgment of the County Court of Clinton County (Ryan, J.), rendered December 18, 2012, convicting defendant upon his plea of guilty of the crimes of criminal sale of a controlled substance in the third degree (two counts), criminal sale of a controlled substance in or near school grounds and criminal possession of a controlled substance in the third degree (six counts), and (2) by permission, from an order of said court, entered May 30, 2014, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant was charged in a nine-count indictment with criminal sale of a controlled substance in the third degree (two counts), criminal sale of a controlled substance in or near school grounds and criminal possession of a controlled substance in the third degree (six counts). Defendant was initially represented by attorney Mark Anderson. Following County Court's

133 A.D.3d 902

denial of defendant's Mapp application, defendant requested new counsel and Anderson renewed an earlier request to withdraw. County Court ultimately appointed attorney Matthew Favro to represent defendant in September 2012. In

20 N.Y.S.3d 434

October 2012, defendant pleaded guilty to the indictment and was sentenced, as a second felony offender, to an aggregate prison term of 10 years with three years of postrelease supervision. Defendant's subsequent motion pursuant to CPL article 440 to vacate the judgment of conviction was denied without a hearing. Defendant appeals from both the judgment of conviction and, by permission of this Court, from the order denying his CPL article 440 motion.

We affirm. Defendant initially contends that the integrity of the grand jury proceeding was compromised because the People failed to present evidence concerning a witness's motivation and credibility. Having failed to raise this specific contention in his motion to dismiss the indictment, the argument has not been preserved for our review (see CPL 210.20[3] ; 470.05 [2]; People v. Goldston, 126 A.D.3d 1175, 1176–1177, 5 N.Y.S.3d 600 [2015], lv.denied 25 N.Y.3d 1201, 16 N.Y.S.3d 524, 37 N.E.3d 1167 [2015] ). In any event, "[t]he People generally enjoy wide discretion in presenting their case to the [g]rand [j]ury" and were not required to present such evidence (People v. Lancaster, 69 N.Y.2d 20, 25, 511 N.Y.S.2d 559, 503 N.E.2d 990 [1986], cert. denied 480 U.S. 922, 107 S.Ct. 1383, 94 L.Ed.2d 697 [1987] ; see People v. Goldston, 126 A.D.3d at 1177 ; People v. Ramjit, 203 A.D.2d 488, 489, 612 N.Y.S.2d 600 [1994], lv. denied 84 N.Y.2d 831, 617 N.Y.S.2d 151, 641 N.E.2d 172 [1994] ). Having entered a plea of guilty, defendant forfeited his claim that he was denied a speedy trial under CPL 30.30 (see People v. O'Brien, 56 N.Y.2d 1009, 1010, 453 N.Y.S.2d 638, 439 N.E.2d 354 [1982] ; People v. Friscia, 51 N.Y.2d 845, 847, 433 N.Y.S.2d 754, 413 N.E.2d 1168 [1980] ; People v. Irvis, 90 A.D.3d 1302, 1303, 935 N.Y.S.2d 371 [2011], lv. denied 19 N.Y.3d 962, 950 N.Y.S.2d 114, 973 N.E.2d 212 [2012] ). Nor did he preserve this claim by raising it in a pretrial motion to dismiss (see People v. Devino, 110 A.D.3d 1146, 1147, 973 N.Y.S.2d 372 [2013] ).

Defendant's assertion that he was denied the effective assistance of counsel is unpersuasive. Defendant complains that Anderson failed to listen to an audiotape of the oral application for a search warrant, which authorized a search of his car and hotel room, resulting in the seizure of both cocaine and heroin. As such, defendant maintains that counsel failed to assess whether there was probable cause for the issuance of the warrant. The record shows that after granting defendant's request for a Mapp hearing, County Court concluded, upon listening to the audiotape, that a Mapp hearing was unnecessary since the detective applying for the warrant disclosed that the involved confidential informant (whose name was not revealed) had participated in two recent controlled buys that were monitored

133 A.D.3d 903

by himself or other members of the Adirondack Drug Task Force. This information satisfied the reliability prong of the Aguilar–Spinelli test and provided probable cause to issue the warrant (see People v. Serrano, 93 N.Y.2d 73, 78, 688 N.Y.S.2d 90, 710 N.E.2d 655 [1999] ; People v. Brucciani, 82 A.D.3d 1001, 1002, 919 N.Y.S.2d 54 [2011], lv. denied 17 N.Y.3d 814, 929 N.Y.S.2d 802 [2011] ; People v. Davenport, 231 A.D.2d 809, 810, 647 N.Y.S.2d 306 [1996], lv. denied 89 N.Y.2d 921, 654 N.Y.S.2d 723, 677 N.E.2d 295 [1996] ). Defendant further asserts that counsel would have been able to discern...