People v. McMillan, 109009

• Decision Date: 16 July 2020
• Docket Number: 109009
• Citation: 185 A.D.3d 1208,128 N.Y.S.3d 85
• Parties: The PEOPLE of the State of New York, Respondent, v. Mack MCMILLAN, Also Known as Duey, Appellant.
• Court: New York Supreme Court — Appellate Division

185 A.D.3d 1208

128 N.Y.S.3d 85

The PEOPLE of the State of New York, Respondent,

v.Mack MCMILLAN, Also Known as Duey, Appellant.

109009

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

Calendar Date: June 11, 2020

Decided and Entered: July 16, 2020

Timothy S. Brennan, Schenectady, for appellant.

David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Devine, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered September 2, 2016, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree and resisting arrest.

In September 2015, defendant was charged by indictment with criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree and resisting arrest based upon allegations that, on March 27, 2015, defendant sold cocaine to a confidential informant (hereinafter CI) and, on a separate occasion later that same day, possessed cocaine with the intent to sell it and, when police tried to arrest him, he fled, ultimately being apprehended with the assistance of a canine. Pursuant to a stipulation in lieu of motions, the People and defendant agreed to hold a suppression hearing. At the conclusion of the suppression hearing, defendant moved to suppress a positive identification by the CI, evidence obtained as a result of the arrest and statements made postarrest, all of which County Court denied. Following a jury trial, defendant was convicted as charged. He was thereafter sentenced, as a second felony drug offender previously convicted of a violent felony, to a prison term of nine years, followed by three years of postrelease supervision, on his conviction of criminal sale of a controlled substance in the third degree and to lesser concurrent terms of incarceration on the remaining convictions. Defendant appeals.

Defendant contends that his convictions are not supported by legally sufficient evidence and that the verdict is against the weight of the evidence because the People failed to prove that he was the individual involved in the transaction insofar as the CI did not testify and law enforcement did not witness the alleged transaction. Initially, defendant's legal sufficiency argument is not preserved, inasmuch as his motions for a trial order of dismissal were not specifically directed at the deficiency alleged on appeal (see People v. Turner, 178 A.D.3d 70, 72, 111 N.Y.S.3d 718 [2019] ; People v. Montford, 145 A.D.3d 1344, 1345, 45 N.Y.S.3d 598 [2016], lv denied 29 N.Y.3d 999, 57 N.Y.S.3d 721, 80 N.E.3d 414 [2017] ). "Nevertheless, in reviewing defendant's challenge that the verdict is against the weight of the evidence, [this Court] must determine whether each element of the charged crimes was proven beyond a reasonable doubt" ( People v. Turner, 178 A.D.3d at 72, 111 N.Y.S.3d 718 [citations omitted] ). "When undertaking a weight of the evidence review, we must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and then, if not, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence. When conducting this review, we consider the evidence in a neutral light and defer to the jury's credibility assessments" ( People v. Santana, 179 A.D.3d 1299, 1300, 117 N.Y.S.3d 729 [2020] [internal quotation marks, brackets and citations omitted], lv denied 35 N.Y.3d 973, 125 N.Y.S.3d 11, 148 N.E.3d 475 [2020] ).

Eric Van Allen, a detective with the City of Kingston Police Department, testified that the CI had purchased cocaine from defendant on previous occasions. Van Allen testified that he was present when the CI made a controlled telephone call to defendant and arranged the time and location for a purchase of cocaine. Van Allen testified that the CI was given a recording device and marked buy money. Van Allen accompanied the CI to defendant's house, where the purchase was to occur, and observed the CI enter and exit defendant's house. While the purchase was occurring, Van Allen was able to listen by way of the recording device. Following the purchase, the CI turned over a substance that Van Allen tested, confirming it was cocaine. Van Allen testified that he was also present for another controlled telephone call between the CI and defendant during which another buy was arranged, this time for the purpose of arresting defendant. Van Allen accompanied the CI to the parking lot near where the buy was set to take place and explained that, while he and his surveillance team was observing an individual in the parking lot whom they believed was defendant, the CI on his own accord indicated to Van Allen that the individual in the parking lot was defendant. Then, Van Allen had the CI call defendant's phone number to confirm defendant's identity. The CI complied and, when defendant answered the phone, Van Allen radioed the team to arrest defendant. Van Allen testified that when two officers approached defendant and attempted to arrest him, he fled, ultimately being chased down with the assistance of a canine. Van Allen arrived at the scene of the arrest and observed cocaine, a cell phone and money that the officers found during a search of defendant's person. Van Allen testified that, on his person, defendant had the marked buy money, in addition to over $500.

The two officers who arrested defendant testified. The officers were in an unmarked police vehicle. One of the officers, who is the handler of the police canine, testified that he was wearing a black tactical vest with the word "sheriff" marked on the front pocket and on the back, and that he was also wearing his badge on top of the vest. The other officer testified that he was wearing a badge and police coat that had "police" displayed on it. Their testimony established that the officers exited the vehicle and informed defendant that they were the police, at which time defendant fled on foot. While pursuing defendant, the officers yelled to defendant to stop and that a canine would be released. Defendant ignored their calls and began to jump a chain link fence, but the canine latched onto and bit into defendant's leg before he could scale the fence. Defendant was secured in handcuffs and taken into custody. One of the officers testified that defendant then attempted to discard a plastic bag of what appeared to be cocaine and that, after searching defendant's person and immediate vicinity, the officer found a box cutter, a cell phone and money. A State Police forensic scientist testified that she conducted testing on both the substance purchased by the CI from defendant, as well as the substance found in the plastic bag that defendant attempted to discard during his arrest, and that both substances contained cocaine, which is a narcotic drug. The forensic scientist also testified that the weight of the cocaine that defendant had at the time of his arrest weighed more than one eighth of an ounce.

Based upon the foregoing, a different verdict would not have been unreasonable insofar as the jury could have reasonably found that the People failed to establish that defendant sold cocaine. However, the testimony established that Van Allen listened to the first controlled buy utilizing the recording equipment. The testimony also established that the cell phone that defendant had on his person at the police station was the same cell phone used to arrange both controlled buys. The testimony also established that, as defendant approached the location for the second controlled buy, the CI informed the police that he recognized the individual to be defendant, which was confirmed by the CI calling defendant's phone number and defendant answering the phone. After being chased by police and apprehended, the police found the buy money, cocaine and the cell phone on defendant's person. Additionally, defendant later admitted at the police station to possessing cocaine. Thus, according deference to the jury's credibility determinations, and after reviewing and weighing the evidence in the record in a neutral light, we are unpersuaded by defendant's contention that the verdict was against the weight of the evidence (see People v. Small, 174 A.D.3d 1130, 1132, 105 N.Y.S.3d 211 [2019], lv denied 34 N.Y.3d 954, 110 N.Y.S.3d 630, 134 N.E.3d 629 [2019] ; People v. Quintana, 159 A.D.3d 1122, 1126, 71 N.Y.S.3d 752 [2018], lv denied 31 N.Y.3d 1086, 79 N.Y.S.3d 107, 103 N.E.3d 1254 [2018] ).

We are similarly unpersuaded by defendant's argument that County Court erred in determining that the CI's identification of defendant was not unduly suggestive. A pretrial identification procedure that is unduly suggestive violates due process and is therefore inadmissible (see People v. Delamota, 18 N.Y.3d 107, 117–118, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ; People v. Quintana, 159 A.D.3d at 1126, 71 N.Y.S.3d 752 ). Courts have found that a police-initiated identification procedure is not unduly suggestive where the identification was spontaneous and not prompted by the accompanying officer (see generally People v. Hernandez, 159 A.D.3d 580, 580, 70 N.Y.S.3d 46 [2018], lv denied 31 N.Y.3d 1083, 79 N.Y.S.3d 104, 103 N.E.3d 1251 [2018] ; People v. Robinson, 121 A.D.3d 1405, 1408–1409, 995 N.Y.S.2d 372 [2014], lv denied 24 N.Y.3d 1221, 4 N.Y.S.3d 609, 28 N.E.3d 45 [2015] ). The People have the initial burden of establishing the reasonableness of a pretrial identification (see People v. Delamota, 18...