People v. Cruz

• Decision Date: 06 August 2015
• Docket Number: 106158
• Citation: 14 N.Y.S.3d 804,2015 N.Y. Slip Op. 06446,131 A.D.3d 724
• 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.

14 N.Y.S.3d 805

Danielle Neroni Reilly, Albany, for appellant, and appellant pro 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.

131 A.D.3d 724

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]; see People v. Greenfield, 112 A.D.3d 1226, 1226, 977 N.Y.S.2d 486 [2013], lv. denied 23 N.Y.3d 1037, 993 N.Y.S.2d 250, 17 N.E.3d 505 [2014] ).

131 A.D.3d 725

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 (see

14 N.Y.S.3d 806

People 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 (see Penal 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 (see Penal 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 (see People v. Reed, 4 A.D.3d 120, 121, 771 N.Y.S.2d 340 [2004], lv. denied 2 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. denied 1 N.Y.3d 574, 775 N.Y.S.2d 790, 807 N.E.2d 903 [2003] ; see also People v. Chatham, 55 A.D.3d 1045, 1046, 865 N.Y.S.2d 402 [2008], lv. denied 14 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

131 A.D.3d 726

lawful arrest. In the absence of a warrant, a lawful arrest is one that is supported by probable cause (see CPL 140.10[1][b] ; People v. Sudler, 75 A.D.3d 901, 902, 906 N.Y.S.2d 373 [2010], lv. denied 15 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. denied 18 N.Y.3d 958, 967 N.E.2d 712 [2012] ; see People 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.

14 N.Y.S.3d 807

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 (see People v. Vasquez, 112 A.D.3d 858, 859, 977 N.Y.S.2d 73 [2013], lv. denied 23 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....