People v. Linder

• Decision Date: 15 March 2019
• Docket Number: 1102,KA 15–01730
• Citation: 95 N.Y.S.3d 681,170 A.D.3d 1555
• Parties: The PEOPLE of the State of New York, Respondent, v. Anquawn LINDER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 1555
95 N.Y.S.3d 681

The PEOPLE of the State of New York, Respondent,
v.
Anquawn LINDER, Defendant–Appellant.

1102
KA 15–01730

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

Entered: March 15, 2019

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR DEFENDANT–APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

170 A.D.3d 1555

It is hereby ORDERED that said appeal from the judgment insofar as it imposed sentence is unanimously dismissed and the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16[12] ).

170 A.D.3d 1556

The conviction arises out of a police-executed traffic stop during which defendant handed a bag containing a "softball"-sized amount of crack cocaine to an accomplice, who then secreted the contraband between his buttocks. We now affirm.

Defendant first challenges the legal sufficiency and weight of the evidence underlying his conviction, arguing that the accomplice's testimony was insufficiently corroborated and that the People therefore failed to establish that defendant possessed the drugs recovered from the accomplice's buttocks. At trial, the accomplice testified that defendant possessed the drugs on his person before the traffic stop and that, shortly after the car was pulled over, defendant used his right arm to pass the bag of drugs to the accomplice. The

95 N.Y.S.3d 685

accomplice testified that he then immediately stuffed the bag of drugs between his buttocks to avoid detection. The accomplice's testimony was corroborated by the testimony of a police officer who witnessed defendant reach over toward the accomplice with his right hand and who, seconds later, saw the accomplice's hand emerge from the back of his pants.

Contrary to defendant's contention, the officer's testimony satisfies the corroboration requirement of CPL 60.22 because it " ‘tends to connect ... defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth’ " ( People v. Reome, 15 N.Y.3d 188, 192, 906 N.Y.S.2d 788, 933 N.E.2d 186 [2010] ; see People v. Davis, 28 N.Y.3d 294, 303, 44 N.Y.S.3d 358, 66 N.E.3d 1076 [2016] ; People v. Philbert, 270 A.D.2d 210, 210, 707 N.Y.S.2d 14 [1st Dept. 2000], lv denied 95 N.Y.2d 856, 714 N.Y.S.2d 7, 736 N.E.2d 868 [2000] ; see also People v. Young, 48 A.D.3d 901, 903, 851 N.Y.S.2d 714 [3d Dept. 2008] ; People v. Arrington, 31 A.D.3d 801, 803, 817 N.Y.S.2d 755 [3d Dept. 2006], lv denied 7 N.Y.3d 865, 824 N.Y.S.2d 610, 857 N.E.2d 1141 [2006] ; cf. People v. Johnson, 1 A.D.3d 891, 892–893, 767 N.Y.S.2d 548 [4th Dept. 2003] ). Notably, " ‘[t]he role of the additional evidence is only to connect the defendant with the commission of the crime, not to prove that he committed it’ " ( Reome, 15 N.Y.3d at 192, 906 N.Y.S.2d 788, 933 N.E.2d 186 ). We thus conclude that there is legally sufficient evidence to establish defendant's possession of the subject cocaine (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; People v. Nichols, 163 A.D.3d 39, 49, 78 N.Y.S.3d 590 [4th Dept. 2018] ). Moreover, upon our independent review of the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we have no reasonable doubt that defendant possessed the drugs at issue (see e.g. People v. La Porte, 217 A.D.2d 821, 821–822, 629 N.Y.S.2d 832 [3d Dept. 1995] ). As such, the verdict is not against the weight of the evidence (see generally People v. Sanchez, 32 N.Y.3d 1021, 1023, 87 N.Y.S.3d 135, 112 N.E.3d 312 [2018] ; People v. Kancharla, 23 N.Y.3d 294, 302–303, 991 N.Y.S.2d 1, 14 N.E.3d 354 [2014] ).

Defendant next contends that the superceding indictment

170 A.D.3d 1557

should be dismissed because the People violated his right to testify at the superceding grand jury presentation (see generally CPL 190.50[5] ). Defendant waived that contention, however, "by failing to move to dismiss the [superceding] indictment on that ground within five days after he was arraigned" ( People v. Roach, 1 A.D.3d 963, 964, 767 N.Y.S.2d 326 [4th Dept. 2003] [emphasis added], lv denied 1 N.Y.3d 579, 775 N.Y.S.2d 795, 807 N.E.2d 908 [2003], reconsideration denied 1 N.Y.3d 633, 777 N.Y.S.2d 32, 808 N.E.2d 1291 [2004], cert denied 543 U.S. 853, 125 S.Ct. 298, 160 L.Ed.2d 87 [2004] ; see CPL 190.50[5][c] ; People v. Osborne, 88 A.D.3d 1284, 1286, 930 N.Y.S.2d 367 [4th Dept. 2011], lv denied 19 N.Y.3d 999, 951 N.Y.S.2d 476, 975 N.E.2d 922 [2012], reconsideration denied 19 N.Y.3d 1104, 955 N.Y.S.2d 560, 979 N.E.2d 821 [2012] ).

In any event, the record establishes that defendant's right to testify was not violated. A person's right to testify before the grand jury on his or her own behalf is explicitly conditioned upon serving the "district attorney" with a "written notice" of intent to testify ( CPL 190.50[5][a] ). "The requirements of CPL 190.50 are to be strictly enforced" ( People v. Kirk, 96 A.D.3d 1354, 1359, 945 N.Y.S.2d 818 [4th Dept. 2012], lv denied 20 N.Y.3d 1012, 960 N.Y.S.2d 355, 984 N.E.2d 330 [2013] [internal quotation marks omitted];

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see People v. Lawrence, 64 N.Y.2d 200, 206–207, 485 N.Y.S.2d 233, 474 N.E.2d 593 [1984] ). Here, although defendant sent a letter to the trial judge asking to testify before the grand jury and later orally reiterated that desire in open court, it is undisputed that defendant never "serve[d] upon the district attorney ... a written notice" of his intent to testify as required by CPL 190.50(5)(a) (emphasis added). Defendant thus failed to effectively invoke his statutory right to testify before the grand jury (see People v. Saldana, 161 A.D.2d 441, 444, 556 N.Y.S.2d 534 [1st Dept. 1990], lv denied 76 N.Y.2d 944, 563 N.Y.S.2d 73, 564 N.E.2d 683 [1990] ). "In the absence of an effective request to testify, the People were entitled to resubmit the charges without notice to defendant" and without affording him an opportunity to testify ( People v. Nix, 265 A.D.2d 891, 891, 696 N.Y.S.2d 326 [4th Dept. 1999] ; cf. People v. Greco, 230 A.D.2d 23, 27–28, 654 N.Y.S.2d 890 [4th Dept. 1997], lv denied 90 N.Y.2d 858, 661 N.Y.S.2d 185, 683 N.E.2d 1059 [1997], reconsideration denied 90 N.Y.2d 940, 664 N.Y.S.2d 758, 687 N.E.2d 655 [1997] ). Contrary to defendant's assertion, the People were not obligated to preemptively notify him of the superceding grand jury proceeding because, at that time, there was no "currently undisposed of felony complaint charging an offense which is a subject of the prospective or pending [superceding] grand jury proceeding" ( CPL 190.50[5][a] ; see People v. Lunney, 84 Misc.2d 1090, 1095–1096, 378 N.Y.S.2d 559 [Sup. Ct., New York County 1975] ; see also People v. Washington, 42 A.D.2d 677, 677, 344 N.Y.S.2d 116 [4th Dept. 1973] ; see generally People v. Franco, 86 N.Y.2d 493, 499–500, 634 N.Y.S.2d 38, 657 N.E.2d 1321 [1995] ). There was thus no basis to dismiss the superceding indictment pursuant to CPL 190.50(5) (see People v. Ponce, 276 A.D.2d 921, 921–922, 714 N.Y.S.2d 592 [3d Dept. 2000], lv denied 96 N.Y.2d 786, 725 N.Y.S.2d 651, 749 N.E.2d 220 [2001] ).

170 A.D.3d 1558

Defendant next contends that the prosecutor committed a Batson violation by peremptorily striking prospective juror 17, a black female. The prosecutor offered three undisputedly race-neutral reasons for striking the subject venireperson: (1) she was "not very forthcoming in her answers"; (2) she was "kind of quiet"; and (3) she was employed as a nursing assistant. County Court rejected defendant's Batson challenge, finding that the prosecutor's rationale for striking the subject venireperson was not pretextual. Initially, by failing to controvert the first and third race-neutral reasons offered by the prosecutor, defendant's claims of pretext as to those reasons are unpreserved for appellate review (see People v. Rubin, 143 A.D.3d 846, 846, 39 N.Y.S.3d 74 [2d Dept. 2016], lv denied 28 N.Y.3d 1126, 51 N.Y.S.3d 23, 73 N.E.3d 363 [2016] ; People v. Knowles, 79 A.D.3d 16, 21, 911 N.Y.S.2d 483 [3d Dept. 2010], lv denied 16 N.Y.3d 896, 926 N.Y.S.2d 32, 949 N.E.2d 980 [2011] ; People v. Holloway, 71 A.D.3d 1486, 1486–1487, 897 N.Y.S.2d 373 [4th Dept. 2010], lv denied 15 N.Y.3d 774, 907 N.Y.S.2d 463, 933 N.E.2d 1056 [2010] ).

In any event, a "trial court's determination whether a proffered race-neutral reason is pretextual is accorded ‘great deference’ on appeal" ( People v. Hecker, 15 N.Y.3d 625, 656, 917 N.Y.S.2d 39, 942 N.E.2d 248 [2010] ), and we see no reason to disturb the court's determination that the prosecutor's explanations in this case were not pretextual (see e.g. People v. English, 119 A.D.3d 706, 706, 988 N.Y.S.2d 697 [2d Dept. 2014], lv denied 24 N.Y.3d 1043, 998 N.Y.S.2d 313, 23...