People v. Doane

• Decision Date: 05 January 2023
• Docket Number: 110597
• Citation: 212 A.D.3d 875,181 N.Y.S.3d 364
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael L. DOANE, Appellant.
• Court: New York Supreme Court — Appellate Division

212 A.D.3d 875

181 N.Y.S.3d 364

The PEOPLE of the State of New York, Respondent,

v.Michael L. DOANE, Appellant.

110597

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

Calendar Date: November 14, 2022

Decided and Entered: January 5, 2023

Matthew C. Hug, Albany, for appellant.

Joseph G. Fazzary, District Attorney, Watkins Glen, for respondent.

Before: Garry, P.J., Clark, Aarons, Pritzker and McShan, JJ.

MEMORANDUM AND ORDER

McShan, J.

Appeal from a judgment of the County Court of Schuyler County (Dennis J. Morris, J.), rendered August 3, 2017, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the fifth degree (three counts).

Defendant was charged by indictment with three counts of criminal sale of a controlled substance in the fifth degree stemming from his sale of methamphetamine during two controlled-buy operations conducted at his home. The matter proceeded to a jury trial, at the conclusion of which defendant was convicted as charged. Defendant was sentenced, as a second felony offender, to a prison term of 2½ years on each count, to be followed by two years of postrelease supervision. Counts 1 and 3 were ordered to run consecutively, with count 2 running concurrently to count 1, for an aggregate sentence of five years. Defendant appeals, and we affirm.

Defendant first contends that his convictions are not supported by legally sufficient evidence and are against the weight of the evidence. Defendant's legal sufficiency arguments are unpreserved owing to his failure to identify the specific grounds now raised on appeal in his general motion to dismiss at the conclusion of the People's case; specifically, that the People failed to establish his identity as the seller of the recovered methamphetamine during the controlled buys and the People's failure to establish that the substance sold was indeed methamphetamine (see People v. Baber, 182 A.D.3d 794, 795, 123 N.Y.S.3d 222 [3d Dept. 2020], lv denied 35 N.Y.3d 1064, 129 N.Y.S.3d 365, 152 N.E.3d 1167 [2020] ; People v. Newman, 169 A.D.3d 1157, 1158, 94 N.Y.S.3d 400 [3d Dept. 2019] ). "Nevertheless, 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" ( People v. Smith, 210 A.D.3d 1297, 1297, 179 N.Y.S.3d 368 [3d Dept. 2022] [internal quotation marks and citations omitted]). As is relevant here, "[a] person is guilty of criminal sale of a controlled substance in the fifth degree when he [or she] knowingly and unlawfully sells a controlled substance" ( Penal Law § 220.31 ).

At trial, the People presented testimony establishing that investigators from the State Police conducted two separate controlled buys of methamphetamine from defendant; one in August 2015 and another in February 2016. Thomas Tryon, a state trooper, testified that he participated in the August 2015 controlled buy with the aid of a confidential informant (hereinafter CI). Prior to the controlled buy, the CI was outfitted with a recording device and searched to ensure that he did not possess any contraband. The CI was also provided with $100 that he would use to purchase methamphetamine from defendant.

Tryon then drove the CI to defendant's home in an unmarked vehicle. Tryon testified that, upon arriving, the CI first went into defendant's home by himself and discovered that defendant was not there, so the CI returned to the vehicle. Defendant eventually arrived and the CI proceeded with defendant into the home. The recording from the device worn by the CI was admitted into evidence, corroborating Tryon's account. The recording reflected that, while the CI was in defendant's home, the CI gave the $100 to defendant and told him that Tryon had another $100 to make a purchase. The CI asked defendant if he preferred to sell the methamphetamine directly to Tryon or if he preferred that the CI get the money and bring it to him, to which defendant responded, "I don't like selling to anybody other than somebody I know." However, Tryon testified that the CI later came out and told Tryon to come into defendant's garage, where he approached defendant and placed $100 on a coffee table that defendant was sitting behind. In response, defendant nodded to a foosball table, which Tryon approached and observed a bag of white powder that he suspected to be methamphetamine. Tryon and the CI then declined an offer from defendant to have a beer and play foosball, and returned to the vehicle, where Tryon collected the substance that the CI had purchased. Upon returning to the State Police barracks, Tryon completed a field test of both substances, which came back as positive for methamphetamine. On cross-examination, Tryon conceded that he observed two other individuals present at defendant's home and that he did not directly witness defendant place anything on the foosball table.

The CI testified to his extensive criminal record, including a history of selling methamphetamine, as well as his history of substance abuse. He confirmed that he had begun assisting the State Police following a 2013 arrest in hopes that it would help him with his pending criminal charges. The CI explained that, at the time of the August 2015 controlled buy, he was working as an informant and, after some consideration as to potential targets with his wife, she suggested that they target defendant. The CI corroborated Tryon's account of the operation, testifying that the state troopers picked him up from his home and brought him to the State Police barracks, where he was fitted with a recording device and strip searched to confirm that he did not have any contraband on his person prior to the controlled buy. Upon arriving at defendant's home and discovering that defendant was not home, he went back to the vehicle and made multiple unsuccessful attempts to contact defendant. Defendant returned shortly thereafter, and the CI proceeded into defendant's home with him. According to the CI, defendant led him to a bedroom and reached under a mattress to retrieve a pouch containing a white substance which defendant exchanged with the CI for $100. The CI also testified consistently with the recording and Tryon's account concerning defendant's initial reluctance to sell to someone he did not know. The CI testified that defendant told him that Tryon could come in but asked the CI to take the money from Tryon and pass it to him. According to the CI, defendant then placed the bag of methamphetamine on the foosball table. The CI testified that Tryon then came in and put the money on the coffee table and grabbed the bag of methamphetamine from the foosball table. After the CI and Tryon left defendant's home, they returned to the barracks and the CI was strip searched and the recording device was removed. The CI testified that while he was at defendant's home, he observed several of the necessary items for making methamphetamine. The CI also testified that in between the August 2015 controlled buy and February 2016, he made approximately five or six additional methamphetamine purchases from defendant.¹

As to the February 2016 controlled buy that was the subject of count 3 of the indictment, the CI testified that he and his wife were transported to defendant's home by a state trooper after being strip searched at the State Police barracks and provided $100. Amanda Giles, a state trooper, testified that she accompanied the CI and his wife to the February 2016 controlled buy, and confirmed that they were both searched prior to traveling to defendant's home. Giles elaborated on the operation, noting that when they first arrived, the CI and his wife went into the house and returned, advising that defendant was not home. Giles then drove both the CI and his wife away from the home, searched the CI's wife, and returned to the home after they had learned that defendant had returned. The CI testified that he then encountered defendant at the door, who directed the CI and his wife to follow him to the bedroom. According to the CI, defendant asked the CI how much methamphetamine he wanted, and the CI responded, "a gram for the [$]100." Defendant handed the CI the bag and then continued bagging methamphetamine for other people in the house. The CI testified that he later realized that defendant had only given him half a gram for the $100. The CI testified that, similar to the previous controlled buy, he got back in the vehicle, turned over the substance to the trooper and proceeded to the State Police barracks, where he and his wife were again stripped searched. On cross-examination, the CI acknowledged that he had participated in the controlled buys and had cooperated with the People with the hope that he would be treated favorably, including on charges that were pending at the time of trial. The CI further acknowledged that the People had decided to stop working with the CI on account of a recent burglary charge. The People also elicited the testimony of the CI's wife, who corroborated the account of the operation. The CI's wife testified that she had known defendant for her whole life and that she had purchased methamphetamine from him on prior occasions. The CI's wife testified consistent with the CI's and Giles’ accounts, noting that she entered defendant's house with the CI and proceeded to the bedroom, where defendant sold the CI methamphetamine.

The People elicited testimony from forensic scientists concerning the testing of the substances procured from the two controlled buys. The forensic scientists consistently testified to the procedures for inventorying and testing controlled substances, including the use of three distinct tests: a color test, a GC screening and a GC mass spec. Each of the forensic scientists consistently testified that testing of the substances procured from the controlled buys indicated that there was methamphetamine present in the respective samples. As to the...