People v. Henry
| Decision Date | 28 December 1995 |
| Citation | 635 N.Y.S.2d 975,222 A.D.2d 932 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Joseph HENRY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Sherry A. Chase, Delmar, for appellant.
Robert M. Carney, District Attorney, Schenectady, for respondent.
Before MIKOLL, J.P., and MERCURE, CREW, YESAWICH and SPAIN, JJ.
Appeals (1) from a judgment of the County Court of Schenectady County (Harrigan, J.), rendered July 28, 1993, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the first degree (two counts), criminal possession of a controlled substance in the third degree (two counts), conspiracy in the second degree, criminal facilitation in the second degree and criminally using drug paraphernalia in the second degree (three counts), (2) from a judgment of said court, rendered July 28, 1993, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the third degree, and (3) by permission from an order of said court, entered December 23, 1994, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgments of conviction, without a hearing.
In March 1991 the State Police commenced an investigation regarding drug activities in the City of Schenectady, Schenectady County. The investigation culminated in June 1991 with the arrest of defendant, codefendant Stanley Kowalczyk and codefendant Scott Kelly. In the latter part of June 1991 three indictments were filed against defendant. Two of the indictments, which were eventually consolidated, charged defendant with two counts of criminal possession of a controlled substance in the first degree, two counts of criminal possession of a controlled substance in the third degree, conspiracy in the second degree, criminal facilitation in the second degree and three counts of criminally using drug paraphernalia in the second degree. Kowalczyk was named in each of these indictments and Kelly was named in one of the indictments. The third indictment charged defendant only with five counts of criminal possession of a weapon in the third degree.
During most of the pretrial stages in this matter, defendant elected to represent himself pro se, requesting only "technical" assistance from his assigned trial counsel. Nevertheless, trial counsel made various pretrial motions and participated in a Sandoval hearing on defendant's behalf; thereafter a jury trial was held on the consolidated indictments. Initially, the prosecution presented State Police Lieutenant Patrick O'Hara who testified, inter alia, that on June 13, 1991 he and other officers apprehended Kelly on an Amtrak train in the City of Hudson, Columbia County, which was enroute from New York City to Schenectady. Kelly was in possession of a duffle bag which contained a white powder later determined to be 150 grams of cocaine. O'Hara also testified that he subsequently searched a rental car which had been rented to defendant on June 12, 1991 and found numerous bags containing a white substance, later identified to be 271.09 grams of cocaine, and various drug paraphernalia. During O'Hara's surveillance of defendant, he observed defendant, Kowalczyk and Kelly together on many occasions.
State Police Investigator Richard Sala testified, inter alia, that on June 13, 1991 he observed defendant drive Kelly to the Amtrak train station in Schenectady. Sala continued to follow Kelly, who was carrying a gray duffel bag, as he boarded a train and traveled to Penn Station in New York City. After Kelly departed the train Sala lost contact with him; however, Sala regained surveillance later that day when Kelly boarded a return train. At this time Sala observed Kelly carrying a more fully packed gray duffel bag and Sala was present when Kelly was subsequently apprehended aboard the train in Hudson.
State Police Investigator Guy Lawrence testified that in furtherance of his surveillance of defendant in the late evening hours of June 13, 1991 and the early morning hours of June 14, 1991, he observed and followed Kowalczyk as he drove defendant's rental car away from 122 Degraff Street in Schenectady, where defendant had rented an apartment. When Lawrence attempted to pull the vehicle over because of outstanding arrest warrants against Kowalczyk, Kowalczyk sped away and eventually lost control of the car. Kowalczyk was able to exit the rental car and flee into a wooded area; he was apprehended hours later. Numerous other State Police Investigators and Troopers testified regarding their individual participation in the investigation. Further, Walter Hepinstall testified that it was defendant who leased the rental car later seized by the Investigators; Neal Shapiro testified that he owned the building at 122 Degraff Street and that defendant rented the apartment from him under a false name.
Kelly was called as a prosecution witness and testified, inter alia, that he had agreed to a plea bargain in which he would testify against defendant in exchange for a reduced sentence. Further, he stated that he had known defendant for six years but that within the last three years he had moved from Florida to Schenectady for the purpose of traveling to New York City to purchase drugs for defendant. Kelly stated that on June 13, 1991, upon defendant's direction, he traveled to New York City and purchased 150 grams of cocaine for $3,600 from a man called "Negro" and that, after the purchase was completed, he boarded an Amtrak train and was subsequently apprehended in Hudson.
Kowalczyk, who was also a prosecution witness, testified, inter alia, that he had agreed to a plea bargain and had also been promised a reduced sentence for his testimony against defendant. He testified that he was aware that Kelly was traveling to New York City on June 13, 1991 to purchase cocaine for defendant and that when Kelly failed to return on time, defendant directed him to remove all drugs and drug paraphernalia from the apartment, put them in the rental car and leave. Thereafter Kowalczyk attempted to evade Lawrence and later abandoned the rental car. The defense presented no witnesses.
Defendant was found guilty on all nine counts. As to the third indictment involving the weapons charges, defendant subsequently pleaded guilty to one count of criminal possession of a weapon in the third degree in full satisfaction of the indictment. On January 13, 1993 defendant moved to set aside the verdict pursuant to CPL 330.30, which County Court denied. Thereafter, defendant also moved to withdraw his plea alleging that his counsel had lied to him and misled him on various matters; County Court also denied this motion. 1
After a persistent felony offender hearing, defendant was sentenced as a persistent felon to an indeterminate term of incarceration of 25 years to life on counts one, two, three and four of the consolidated indictments, all to run concurrently with each other; 15 years to life on counts five and six of the consolidated indictments, to run concurrently with each and consecutively with counts one through four; and one year on counts seven, eight and nine of the consolidated indictments, to run concurrently with each other and all other counts. Defendant was also sentenced as a persistent felon to an indeterminate term of incarceration of 3 to 6 years upon his plea of guilty to criminal possession of a weapon in the third degree, to run concurrently with counts one through nine of the consolidated indictments. Defendant appeals from both judgments of conviction. Following sentencing, but before perfection of his appeal, defendant moved in County Court pursuant to CPL 440.10 to vacate his judgments of conviction, which the People opposed. County Court denied the motion without a hearing. Defendant appeals, by permission, from the order denying his CPL 440.10 motion.
We affirm. Initially, regarding defendant's contention that County Court erred in its Sandoval ruling, we are of the opinion, under the circumstances of this case, that County Court committed error by permitting inquiry into the four convictions which were 15 years old...
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