People v. Johnson

• Decision Date: 26 January 2012
• Citation: 91 A.D.3d 1194,937 N.Y.S.2d 443,2012 N.Y. Slip Op. 00427
• Parties: The PEOPLE of the State of New York, Respondent, v. Shawndell JOHNSON, Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00427

91 A.D.3d 1194

937 N.Y.S.2d 443

The PEOPLE of the State of New York, Respondent,

v.Shawndell JOHNSON, Appellant.

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

Jan. 26, 2012.

Mitch Kessler, Cohoes, for appellant.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.

Before: MERCURE, Acting P.J., PETERS, ROSE, LAHTINEN and GARRY, JJ.

GARRY, J.

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered January 28, 2010, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.

In November 2008, the City of Schenectady Police Department executed an undercover drug operation in which a confidential informant (hereinafter CI) purchased narcotics on three separate occasions from a seller alleged to be defendant. During each transaction, the CI wore a hidden microphone that permitted nearby police officers to listen in. During the first two purchases, the CI was the only person able to view the seller at close range, but during the third transaction, police officers were able to see his face. A few days after this third transaction, the CI was unable to identify defendant in a photo array, but did later identify defendant as the seller when shown a different photo array. The police obtained a warrant to search defendant's apartment and found a bag of narcotics—discovered in the pants pocket of another man residing at the home—a digital scale, and currency. Defendant and other individuals present during the search were arrested.

Defendant was indicted on various drug charges. After a jury trial, he was acquitted of all charges arising from the first two transactions, but convicted of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree as to the third transaction. He was sentenced to two concurrent prison terms of 12 years and three years of postrelease supervision. Defendant appeals.

Initially, defendant contends that his convictions are logically inconsistent with his acquittals on the charges arising from the first two transactions because the People had contended at trial that the CI purchased drugs from the same seller on all three occasions. We disagree. The transactions were separate events that occurred on different days, and the People's proof relating to the third purchase was considerably stronger than that concerning the first two. Two police officers testified that they saw defendant's face, and positively identified him as the person they had observed selling drugs to the CI relative to the third transaction, while only the CI offered trial testimony identifying defendant relative to the first two transactions. The reliability of the CI's identification was also called into question at trial, as he had previously provided police with a description of the seller that conflicted in several respects with defendant's appearance. Moreover, the testimony revealed that the CI was unable to identify defendant's picture in the first of the two photo arrays that he viewed. Thus, the jury could rationally have accepted the officers' identification testimony while rejecting that of the CI, in whole or in part, and concluded that the People had proved beyond a reasonable doubt that defendant was the individual involved in the third sale, but had failed to meet that burden as to the first two transactions ( see People v. Bradshaw, 263 A.D.2d 767, 768, 693 N.Y.S.2d 725 [1999], lv. denied 94 N.Y.2d 820, 702 N.Y.S.2d 590, 724 N.E.2d 382 [1999]; compare People v. Clayton, 17 A.D.3d 706, 707–708, 793 N.Y.S.2d 233 [2005] ).

Next, we reject defendant's contention that the convictions were contrary to the weight of the evidence because the description of the seller that the CI initially provided to police did not resemble defendant. Where, as here, an acquittal would not have been unreasonable, this Court must “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” ( People v. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] [internal quotation marks and citations omitted] ) while viewing the evidence in a neutral light and giving deference to the jury's credibility assessments ( see People v. Rolle, 72 A.D.3d 1393, 1396, 900 N.Y.S.2d 187 [2010], lv. denied 16 N.Y.3d 745, 917 N.Y.S.2d 627, 942 N.E.2d 1052 [2011]; People v. Peryea, 68 A.D.3d 1144, 1146–1147, 889 N.Y.S.2d 741 [2009], lv. denied 14 N.Y.3d 804, 899 N.Y.S.2d 138, 925 N.E.2d 942 [2010] ). As previously noted, two police officers identified defendant as the man they saw selling drugs to the CI on the third occasion, and a search of defendant's residence several days later yielded crack cocaine, currency, and a digital scale. The CI was unable to identify defendant in the first photo array, but he did identify him as the seller in the second photo array. Given this evidence corroborating the CI's testimony that defendant was the person who sold him drugs during the third transaction, the discrepancies in his initial description do not render his testimony incredible as a matter of law, and we do not find the verdict to be against the weight of the evidence ( see 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]; People v. Ward, 27 A.D.3d 776, 777, 809 N.Y.S.2d 678 [2006], lv. denied 7 N.Y.3d 764, 819 N.Y.S.2d 890, 853 N.E.2d 261 [2006]; People v. Golden, 24 A.D.3d 806, 807, 804 N.Y.S.2d 496 [2005], lvs. denied 6 N.Y.3d 812, 813, 812 N.Y.S.2d 451, 452, 845 N.E.2d 1282, 1283 [2006] ).

Finally, defendant contends that County Court denied him a fair trial by granting the People's request for a protective order preventing pretrial disclosure of audiotape recordings of the three drug transactions. When defendant sought copies of these recordings, the People moved for a protective order to prevent disclosure of the CI's identity until he testified at trial. County Court (Drago, J.) granted the motion but directed the People to provide defendant with a transcript of the recordings. Initially, as these tapes were made in the course of a criminal transaction and were never introduced at trial, they were “not discoverable as a matter of right unless constitutionally or otherwise...