People v. Fisher
| Decision Date | 19 January 2023 |
| Docket Number | 111188 |
| Citation | 212 A.D.3d 984,182 N.Y.S.3d 325 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Kenneth E. FISHER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Lisa A. Burgess, Indian Lake, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (John D. Kelley of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Aarons, Reynolds Fitzgerald and McShan, JJ.
Reynolds Fitzgerald, J. Appeal from a judgment of the County Court of Chemung County (Christopher P. Baker, J.), rendered February 4, 2019, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree (three counts).
Defendant was charged, by two separate indictments, with three counts of criminal sale of a controlled substance in the third degree – in connection with two "controlled buy" operations involving a confidential informant (hereinafter the CI) that occurred on February 7 and February 13, 2018 – and with two counts of criminal possession of a controlled substance in the fourth degree. The indictments were consolidated and, following a jury trial, defendant was convicted of each count of criminal sale of a controlled substance in the third degree but was acquitted of the two counts of criminal possession of a controlled substance in the fourth degree. Defendant was sentenced, as a second felony offender, to a prison term of 4½ years on each conviction – with the convictions on counts 1 and 2 to run consecutively and the convictions on counts 2 and 3 to run concurrently – for a total prison term of 9 years, followed by three years of postrelease supervision. Defendant appeals.
Defendant contends that the verdict is against the weight of the evidence because no witness actually observed him selling the cocaine to the CI. ( People v. Sumpter, 191 A.D.3d 1160, 1161, 143 N.Y.S.3d 145 [3d Dept. 2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 968, 148 N.Y.S.3d 754, 171 N.E.3d 230 [2021] ; see People v. Montford, 207 A.D.3d 811, 812, 170 N.Y.S.3d 735 [3d Dept. 2022], lv denied 39 N.Y.3d 941, 177 N.Y.S.3d 539, 198 N.E.3d 782 [2022] ).
At trial, the People produced testimony from several law enforcement officers and the recordings of the controlled buys.1 An investigator with the State Police working with Community Narcotics Enforcement Team (hereinafter CNET), described the general procedure involved in a controlled buy operation involving a CI. He testified that an undercover agent was present during both of these controlled buys and that numerous members of law enforcement were surveilling same. As to the February 7, 2018 controlled buy, he testified that defendant was the intended target and that he and other law enforcement officers were familiar with defendant and that he drove a Mercedes. The investigator detailed how he conducted the strip searches of the CI and confirmed that the CI did not have any personal funds or personal narcotics on him. He also accompanied the CI to the area where the CI called defendant to arrange the buy, then surveilled the controlled buy and observed that the only occupant in the Mercedes was the driver. The investigator then field tested the narcotic, which tested positive for cocaine. Regarding the February 13 controlled buy, the investigator testified that he witnessed the CI being strip searched and fitted with a body wire, gave the CI and undercover agent the funds to purchase the drugs and again accompanied the CI while he placed the controlled call to arrange the buy. The investigator watched the controlled buy in the Tops parking lot and observed defendant driving the vehicle. At the conclusion of the controlled buy, he followed the CI and undercover agent to the area where the CI was once again strip searched. The investigator also testified that a cell phone was seized from defendant and when he called the number that the CI had used to contact defendant, the cell phone rang.
A lieutenant with the Elmira Police Department (hereinafter EPD) testified that he was involved in the February 13, 2018 controlled buy. He stated that his role was surveillance at the apartment complex where defendant resided. He observed and took pictures of defendant and his relative leaving the apartment and getting into a Mercedes. He testified that defendant was the driver and defendant's relative was the passenger. The lieutenant described defendant as having short hair and his relative as having long dreadlocks. The photographs corroborated his testimony.
A senior investigator with the State Police assigned to CNET testified that he was the undercover agent working with the CI during the February 7, 2018 controlled buy. He stated his role was to drive the CI to and from the buy location and to possibly be introduced to the target. The senior investigator testified that he drove the CI to an area where the controlled call was placed to purchase the drugs, drove the CI to Tops parking lot and watched the CI enter and exit defendant's Mercedes. The investigator indicated that he did not get a full view of the driver, but observed that the only occupant was the driver and that he had short hair. At the conclusion of the controlled buy, he saw the CI give the narcotics to an investigator.
A State Police officer assigned to CNET testified that he was the undercover agent working with the CI during the February 13 controlled buy. He stated that he drove the CI to the area to place the controlled telephone call, then drove the CI to Tops parking lot to purchase the narcotics. He testified that there were two individuals in defendant's Mercedes – defendant was driving the vehicle and his relative was a passenger. When the CI returned to their truck a second time, the CI told the officer to back up the truck so defendant can look at him. The officer testified that defendant's vehicle and his vehicle were approximately 10 feet apart and he was able to get a good look at defendant and his passenger. The officer identified the driver as defendant. He further testified that he collected two cocaine knots from the CI and put it in the truck's console until they returned to the area where the CI was to be strip searched.
An EPD officer, assigned to the drug enforcement unit, testified that he was assigned to surveil both the February 7 and February 13, 2018 controlled buys. At the conclusion of the February 7 buy, he observed defendant – who was the only person in the vehicle – leaving Tops parking lot. During the February 13 buy, he observed defendant driving the vehicle, along with a second person who was a passenger, exit the Tops parking lot at the conclusion of the buy. The officer identified the driver as defendant and stated that he knew defendant from the gym. An investigator with the EPD testified that he transported the CI to the area to place the February 7 and the February 13 controlled calls. The investigator further testified he recorded each call, downloaded them onto two disks and described the contents of each call when played at trial.
Although a different verdict would not have been unreasonable, when viewing the evidence in a neutral light and according deference to the jury's credibility determinations, we conclude that the verdict is not against the weight of the evidence (see People v. Sumpter, 191 A.D.3d at 1162–1163, 143 N.Y.S.3d 145 ; People v. McMillan, 185 A.D.3d 1208, 1211, 128 N.Y.S.3d 85 [3d Dept. 2020], lv denied 35 N.Y.3d 1114, 133 N.Y.S.3d 532, 158 N.E.3d 549 [2020] ). The testimony established that defendant was the only person in the vehicle during the February 7, 2018 controlled buy, and was identified as the driver leaving the Tops parking lot immediately upon completing the controlled buy. The testimony also established that defendant was identified as the driver of the vehicle during the February 13 controlled buy, and was observed turning and communicating with the CI during the buy. Defendant was also observed by multiple officers during and immediately after each controlled buy (see People v. McMillan, 185 A.D.3d at 1210–1211, 128 N.Y.S.3d 85 ; People v. Small, 174 A.D.3d 1130, 1132, 105 N.Y.S.3d 211 [3d Dept. 2019], lv denied 34 N.Y.3d 954, 110 N.Y.S.3d 630, 134 N.E.3d 629 [2019] ; People v. Morris, 165 A.D.3d 1489, 1490, 86 N.Y.S.3d 309 [3d Dept. 2018], lv denied 32 N.Y.3d 1207, 99 N.Y.S.3d 195, 122 N.E.3d 1108 [2019] ).
Defendant next contends that County Court improperly denied his motion for a mistrial on the ground that one of the trial jurors was grossly unqualified to serve. Pursuant to CPL 270.35(1), "[i]f at any time after the trial jury has been sworn and before the rendition of its verdict, ... the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case ..., the court must discharge such juror." A juror is considered grossly unqualified to serve "when it becomes obvious that he or she possesses a state of mind which would prevent the rendering of an impartial verdict" ( People v. Alger, 206 A.D.3d 1049, 1054, 169 N.Y.S.3d 200 [3d Dept. 2022] [internal quotation marks, brackets and citations omitted], lv denied 38 N.Y.3d 1148, 174 N.Y.S.3d 32, 194 N.E.3d 739 [2022] ). "To decide whether a juror is grossly unqualified, the trial court must conduct a probing and tactful inquiry" ( People v. Crider, 176 A.D.3d 1499, 1500, 113 N.Y.S.3d 347 [3d Dept. 2019] [internal...
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