People v. Cummings

• Decision Date: 04 January 2018
• Docket Number: 107295
• Citation: 157 A.D.3d 982,69 N.Y.S.3d 394
• Parties: The PEOPLE of the State of New York, Respondent, v. Ervin CUMMINGS, Appellant.
• Court: New York Supreme Court — Appellate Division

157 A.D.3d 982
69 N.Y.S.3d 394

The PEOPLE of the State of New York, Respondent,
v.
Ervin CUMMINGS, Appellant.

107295

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

Calendar Date: November 16, 2017
Decided and Entered: January 4, 2018

69 N.Y.S.3d 396

Cheryl L. Sovern, Clifton Park, for appellant, and appellant pro se.

Andrew J. Wylie, District Attorney, Plattsburgh (Timothy G. Blatchley of counsel), for respondent.

Before: McCarthy, J.P., Lynch, Devine, Mulvey and Aarons, JJ.

MEMORANDUM AND ORDER

Mulvey, J.

Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered October 28, 2014, upon a verdict convicting defendant of the crime of criminal possession of a controlled substance in the third degree.

After members of the Adirondack Drug Task Force observed a controlled drug transaction between Tiffany Moore and a confidential informant in defendant's

69 N.Y.S.3d 397

presence outside a residence, Moore drove away in a vehicle in which defendant was the front seat passenger. Within a short time, police conducted a traffic stop and a search of the vehicle disclosed a large quantity of heroin packaged in 112 envelopes under the front passenger seat. Defendant was thereafter charged by indictment with criminal possession of a controlled substance in the third degree. Defendant's motion to suppress, among other things, his statements to police and the physical evidence was denied following a combined Huntley/Ingle hearing. After a jury trial, he was convicted as charged and sentenced, as a second felony offender, to a prison term of nine years followed by three years of postrelease supervision. Defendant now appeals.

We affirm. Initially, defendant argues that police lacked probable cause to stop the vehicle and that the drugs seized from under the passenger seat should have been suppressed.¹ County Court credited the testimony of Christopher Clarke, the police officer who stopped the vehicle, that he had observed defendant in the passenger seat of the moving vehicle without wearing the required seat belt, a traffic violation (see Vehicle and Traffic Law § 1229–c [3 ] ). Observation of this traffic violation, which defendant conceded after the stop, provided the requisite probable cause to stop the vehicle, regardless of the "primary motivation" for the stop ( People v. Robinson , 97 N.Y.2d 341, 349, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001] ; see People v. Guthrie , 25 N.Y.3d 130, 133, 8 N.Y.S.3d 237, 30 N.E.3d 880 [2015] ; People v. Martin , 156 A.D.3d 956, 957, 66 N.Y.S.3d 572, 2017 N.Y. Slip Op. 08555, *1 [2017]; People v. Singleton , 135 A.D.3d 1165, 1168, 25 N.Y.S.3d 378 [2016], lv

denied 27 N.Y.3d 969, 36 N.Y.S.3d 630, 56 N.E.3d 910 [2016] ). Alternately, the information imparted by task force officers to Clarke—that the driver had, moments earlier, been observed selling heroin in a controlled buy—also provided probable cause for the stop (see People v. Jenkins , 90 A.D.3d 1326, 1327, 935 N.Y.S.2d 204 [2011], lv denied 18 N.Y.3d 958, 944 N.Y.S.2d 487, 967 N.E.2d 712 [2012] ; People v. Douglas , 42 A.D.3d 756, 757–758, 839 N.Y.S.2d 337 [2007], lv denied 9 N.Y.3d 922, 844 N.Y.S.2d 177, 875 N.E.2d 896 [2007] ).

To the extent that defendant challenges the lawfulness of the ensuing search of the vehicle,² Clarke testified that, after

69 N.Y.S.3d 398

the stop, defendant and Moore exited the vehicle and he spoke to them briefly; Clarke then returned to his vehicle to write the traffic ticket and check Moore's license and registration, when he observed defendant become "fidgety," reach into the pouch he carried at his waist, get back into the front passenger seat, lean over and then exit the vehicle. At that point, Clarke returned to the vehicle and, upon request, defendant consented to Clarke looking in the pouch, where he found a cut straw with resin of the type commonly used to ingest narcotics. Clarke then obtained Moore's consent to search the vehicle, which was registered to her husband, and the packages of heroin were found under the front passenger seat where defendant had been sitting. Defendant was arrested, some of the recorded buy money was found on his person and he later admitted to police that the heroin belonged to him. Under the circumstances, Clarke had a founded suspicion that defendant had secreted the heroin under the passenger seat, i.e., that criminal activity was afoot, and was authorized to request consent to search the vehicle (see People v. Hayden , 155 A.D.3d 1309, 1310, 65 N.Y.S.3d 320 [2017] ; People v. Whalen , 101 A.D.3d 1167, 1168, 956 N.Y.S.2d 598 [2012], lv denied 20 N.Y.3d 1105, 965 N.Y.S.2d 801, 988 N.E.2d 539 [2013] ). We accord great deference to the motion court's decision to credit Clarke's account and to its factual determination that defendant and Moore voluntarily consented to the searches, and we discern no basis upon which to disturb County Court's findings or denial of the motion to suppress the physical evidence (see People v. Hayden , 155 A.D.3d at 1310, 65 N.Y.S.3d 320 ).

Next, defendant contends that his statements to police during the traffic stop and at the police station should have been suppressed as involuntary because he was impaired by drugs. The police officers who had face-to-face interactions with defendant during the stop, arrest and questioning, whom County Court found credible, testified that defendant did not appear to be impaired or intoxicated, was not confused, did not request an attorney and was cooperative. Their testimony established that defendant received Miranda warnings shortly after his arrest, indicated that he understood them and agreed to speak with the officers. As County Court correctly observed, the video recording of the police interview of defendant at the station, in which he admitted that the heroin found in the vehicle belonged to him, while partially unintelligible, belies his claims that he was impaired or had difficulty understanding his rights. There was no convincing evidence that defendant was impaired "to the level of mania or to the level where [he was] unable to comprehend the meaning of his words so as to render his statement involuntary" ( People v. Whitted , 117 A.D.3d 1179, 1180–1181, 985 N.Y.S.2d 319 [2014] [internal quotation marks, ellipses and citations omitted], lv denied 23 N.Y.3d 1026, 992 N.Y.S.2d 809, 16 N.E.3d 1289 [2014] ; see People v. Scott , 47 A.D.3d 1016, 1020, 849 N.Y.S.2d 335 [2008], lv denied 10 N.Y.3d 870, 860 N.Y.S.2d 496, 890 N.E.2d 259 [2008] ). Accordingly, we find that the People proved beyond a reasonable doubt that defendant was advised of and knowingly waived his rights and that his statements were voluntary and, thus, his motion to suppress was properly denied (see People v. Jin Cheng Lin , 26 N.Y.3d 701, 719, 27 N.Y.S.3d 439, 47 N.E.3d 718 [2016] ;

69 N.Y.S.3d 399

People v. Steigler , 152 A.D.3d 1083, 1083–1084, 59 N.Y.S.3d 814 [2017], lv denied 30 N.Y.3d 983, 67 N.Y.S.3d 586, 89 N.E.3d 1266 [2017] ).

We now turn to defendant's claims that errors occurred at trial. We are not persuaded by the contention raised in defendant's pro se brief that County Court erred in striking for cause prospective juror No. 10.³ "When a prospective juror's impartiality is in doubt, it is the court's obligation to make further inquiries and to excuse the juror if the doubt is not fully dispelled. Notably, if there is any doubt about a prospective juror's impartiality, the trial court should err on the side of excusing the juror, since at worst the court will have replaced one impartial juror with another" ( People v. Briskin , 125 A.D.3d 1113, 1117, 3 N.Y.S.3d 200 [2015] [internal quotation marks, brackets and citations omitted], lv denied 25 N.Y.3d 1069, 12 N.Y.S.3d 621, 34 N.E.3d 372 [2015] ). The record reflects that the prospective juror expressed concerns about the potential sentence that defendant faced and whether it would be fair or influenced by race, and indicated that she did not think that she could be impartial unless defendant testified. As the juror did not provide an "unequivocal assurance of impartiality," County Court properly granted the People's motion to strike her for cause pursuant to CPL 270.20(1)(b) ( id. at 1118, 3 N.Y.S.3d 200 ; see People v. Harris , 19 N.Y.3d 679, 685, 954 N.Y.S.2d 777, 978 N.E.2d 1246 [2012] ). Moreover, as the People did not, at any point, exhaust their peremptory challenges, reversible error did not occur (see CPL 270.20[2] ).

Next, defendant argues that County Court erred in permitting the People to refer to him by his street name, Mafia, and to elicit testimony using that name. These references occurred in the opening statements and during the testimony of the police officers involved in the ongoing drug investigations and the controlled buy; the officers knew defendant only by his street name from confidential sources and first learned his identity after he was arrested. As defendant's street name was relevant to his identity and he was known to and identified by witnesses by that name, we cannot conclude that the court abused its discretion in permitting its use during trial while striking any reference to it from the indictment, although the court should have instructed the jury that it...