People v. Cruz

• Decision Date: 06 August 2015
• Docket Number: 106158
• Citation: People v. Cruz, 2015 NY Slip Op 6446, 131 A.D.3d 724, 14 N.Y.S.3d 804 (N.Y. App. Div. 2015)
• Parties: The PEOPLE of the State of New York, Respondent, v. Jorge CRUZ, Appellant.
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 724

14 N.Y.S.3d 804

2015 N.Y. Slip Op. 06446

The PEOPLE of the State of New York, Respondent

v.Jorge CRUZ, Appellant.

106158

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

Aug. 6, 2015.

Danielle Neroni Reilly, Albany, for appellant, and appellantpro se.

P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., DEVINE and CLARK, JJ.

Opinion

McCARTHY, J.P.

Appeal from a judgment of the Supreme Court(Breslin, J.), rendered May 15, 2013 in Albany County, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree and attempted criminal sale of a controlled substance in the third degree.

Defendant was indicted for the crimes of criminal possession of a controlled substance in the third degree and attempted criminal sale of a controlled substance in the third degree in relation to an August 2012 incident where he allegedly arrived at a designated location in the City of Albany intending to sell heroin to a confidential informant (hereinafter CI).Prior to trial, defendant moved to, among other things, suppress the physical evidence—namely, the drugs in question and his cell phone—recovered upon his arrest, which motion Supreme Court denied.At a pretrial conference prior to jury selection, defendant stated his desire to proceed pro se, which request Supreme Court granted.At the close of trial, the jury found defendant guilty as charged, and he was thereafter sentenced to an aggregate prison term of six years and two years of postrelease supervision.Defendant now appeals.

As an initial matter, defendant failed to preserve his challenge to the legal sufficiency of the evidence given that his motion for a trial order of dismissal at the close of the People's proof was not “specifically directed at the error[s] being urged” on appeal (People v. Hawkins,11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946[2008][internal quotation marks and citation omitted];seePeople v. Greenfield,112 A.D.3d 1226, 1226, 977 N.Y.S.2d 486[2013], lv. denied23 N.Y.3d 1037, 993 N.Y.S.2d 250, 17 N.E.3d 505[2014] ).

However, a weight of the evidence challenge, which bears no preservation requirement, also requires consideration of the adequacy of the evidence as to each element of the crimes (seePeople v. McGough,122 A.D.3d 1164, 1166, 998 N.Y.S.2d 232[2014];People v. Greenfield,112 A.D.3d at 1226, 977 N.Y.S.2d 486 ).With respect to the charge of criminal possession of a controlled substance in the third degree, as relevant here, the People were required to establish that defendant knowingly and unlawfully possessed a narcotic drug with intent to sell it (seePenal Law § 220.16 [1] ).With respect to attempted criminal sale of a controlled substance in the third degree, as relevant here, the People were required to show that defendant intended to sell a narcotic drug and engaged in conduct that tended to effect the commission of such sale (seePenal Law §§ 110.00,220.39 [1] ).

Here, the CI testified that he had known defendant since May 2012 and that he had purchased heroin from him three to four times a week during the time leading up to the incident in question.The CI further testified that, prior to the incident, he made a series of controlled calls to defendant about buying a package of 10 bags of heroin on an arranged date at a specified location in Albany.On that date, the CI went to that location with several police officers and, when he saw defendant approaching, pointed him out to the officers and called him one last time on his cell phone, at which point defendant answered his phone and was thereafter arrested.Several police officers corroborated the CI's account and identified defendant as the individual who arrived to meet the CI that day.One officer testified that, upon defendant's arrest, he recovered what appeared to be packets of heroin from defendant's pocket, and a forensic scientist testified that, pursuant to testing and in his expert opinion, the packets contained heroin.

Considering the foregoing testimony, we find that there was adequate evidence from which the jury could infer that defendant arrived at the location predetermined for the drug deal with the heroin previously identified for sale, which he intended to sell to the CI.Thus, viewing the evidence in a neutral light and deferring to the jury's credibility determinations, defendant's convictions were not against the weight of the evidence (seePeople v. Reed,4 A.D.3d 120, 121, 771 N.Y.S.2d 340[2004], lv. denied2 N.Y.3d 805, 781 N.Y.S.2d 304, 814 N.E.2d 476[2004];People v. Jiminez,300 A.D.2d 77, 78, 750 N.Y.S.2d 757[2002], lv. denied1 N.Y.3d 574, 775 N.Y.S.2d 790, 807 N.E.2d 903[2003];see alsoPeople v. Chatham,55 A.D.3d 1045, 1046, 865 N.Y.S.2d 402[2008], lv. denied14 N.Y.3d 839, 901 N.Y.S.2d 145, 927 N.E.2d 566[2010] ).

Supreme Court properly denied defendant's motion to suppress the physical evidence because such evidence was recovered within the scope of a search incident to defendant's lawful arrest.In the absence of a warrant, a lawful arrest is one that is supported by probable cause (seeCPL 140.10[1][b];People v. Sudler,75 A.D.3d 901, 902, 906 N.Y.S.2d 373[2010], lv. denied15 N.Y.3d 956, 917 N.Y.S.2d 116, 942 N.E.2d 327[2010] ).“Probable cause ... exists when an officer has knowledge of facts and circumstances sufficient to support a reasonable belief that an offense has been or is being committed”(People v. Jenkins,90 A.D.3d 1326, 1327, 935 N.Y.S.2d 204[2011][internal quotation marks and citations omitted], lv. denied18 N.Y.3d 958, 967 N.E.2d 712[2012];seePeople v. Sudler,75 A.D.3d at 902, 906 N.Y.S.2d 373 ).Here, the arresting officers observed the CI's phone calls setting up the drug deal with defendant and, on the day in question, saw an individual fitting defendant's description walking toward the designated location and answering his cell phone at the moment the CI called.This evidence constituted probable cause to arrest defendant (see People v. Nichol,

121 A.D.3d 1174, 1175, 994 N.Y.S.2d 691[2014];People v. Jenkins,90 A.D.3d at 1327, 935 N.Y.S.2d 204;People v. Sudler,75 A.D.3d at 902–903, 906 N.Y.S.2d 373;People v. Vanhoesen,31 A.D.3d 805, 806, 819 N.Y.S.2d 319[2006] ).In executing the arrest, one officer secured defendant's left hand and, in so doing, took possession of his cell phone.Additionally, another officer's subsequent search of defendant's pocket recovered 10 envelopes of what appeared to be heroin.Given that the two items were within defendant's immediate reach and were seized immediately upon his arrest, such evidence was recovered within the scope of a search incident to defendant's lawful arrest (seePeople v. Vasquez,112 A.D.3d 858, 859, 977 N.Y.S.2d 73[2013], lv. denied23 N.Y.3d 1044, 993 N.Y.S.2d 257, 17 N.E.3d 512[2014];People v. Roberts,80 A.D.3d 787, 789, 913 N.Y.S.2d 829[2011], lvs. denied16 N.Y.3d 860, 862, 923 N.Y.S.2d 422, 424, 947 N.E.2d 1201, 1203[2011];People v. Perez,252 A.D.2d 353, 353, 675 N.Y.S.2d 71[1998], lv. denied92 N.Y.2d 984, 683 N.Y.S.2d 766, 706 N.E.2d 754[1998] ).Accordingly, Supreme Court properly denied defendant's motion to suppress the physical evidence.

Supreme Court properly granted defendant's request to proceed pro se at trial.“A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3)the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues”(People v. McIntyre,36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322[1974][emphasis omitted];accordMatter of Kathleen K. [Steven K.],17 N.Y.3d 380, 385, 929 N.Y.S.2d 535, 953 N.E.2d 773[2011];People v. Dashnaw,116 A.D.3d 1222, 1230, 983 N.Y.S.2d 681[2014], lv. denied23 N.Y.3d 1019, 992 N.Y.S.2d 802, 16 N.E.3d 1282[2014] ).As to the first element, defendant first voiced his desire to represent himself at a pretrial conference six days before trial, but told the court that he had been telling his attorney that he no longer wanted to be represented by him for the last three months.When asked why, defendant conveyed that he did not trust any court-appointed attorney.Defendant reconfirmed his unequivocal desire to represent himself just prior to jury selection.Absent any evidence that defendant's request obstructed the proceedings or led to “delay [or] confusion,” and considering defendant's expressed desire to be allowed to represent himself, we find that Supreme Court did not abuse its discretion in considering the merits of defendant's request (People v. McIntyre,36 N.Y.2d at 17, 364 N.Y.S.2d 837, 324 N.E.2d 322;seePeople v. Dashnaw,116 A.D.3d at 1231, 983 N.Y.S.2d 681 ).

As to the second element, in order “[t]o ascertain whether a waiver [of the right to counsel] is knowing, voluntary and intelligent, a court must undertake a searching inquiry designed to insure that the defendant is aware of the dangers and disadvantages of proceeding without counsel”(People v. Crampe,17 N.Y.3d 469, 481, 932 N.Y.S.2d 765, 957 N.E.2d 255[2011][internal quotation marks, brackets and citations omitted], cert. denied––– U.S. ––––, 132 S.Ct. 1746, 182 L.Ed.2d 531[2012];seePeople v. Guarnieri,122 A.D.3d 1078, 1080, 996 N.Y.S.2d 776[2014] ).Prior to granting defendant's request in this case, Supreme Court repeatedly “warn[ed]defendant of the risks inherent in proceeding pro se” and informed him that proceeding without counsel would greatly increase his chances of being convicted due to his lack of familiarity with the legal system (People v. Crampe,

17 N.Y.3d at 482, 932 N.Y.S.2d 765, 957 N.E.2d 255;comparePeople v. Guarnieri,122 A.D.3d at 1080, 996 N.Y.S.2d 776 ).The court also conducted a thorough inquiry...