People v. Miller

• Decision Date: 05 April 2018
• Docket Number: 107571
• Citation: 75 N.Y.S.3d 112,160 A.D.3d 1040
• Parties: The PEOPLE of the State of New York, Respondent, v. Maurice MILLER, Appellant.
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 1040

75 N.Y.S.3d 112

The PEOPLE of the State of New York, Respondent,

v.Maurice MILLER, Appellant.

107571

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

Calendar Date: February 13, 2018

Decided and Entered: April 5, 2018

Matthew C. Hug, Albany, for appellant.

Joel E. Abelove, District Attorney, Troy (Vincent J. O'Neill of counsel), for respondent.

Before: McCarthy, J.P., Lynch, Clark, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.), rendered April 6, 2015, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree.

Defendant was indicted for the crime of criminal sale of a controlled substance in the third degree for allegedly selling heroin to a paid confidential informant (hereinafter CI). After a jury trial, defendant was convicted as charged and sentenced as a second felony drug offender to six years in prison followed by two years of postrelease supervision. Defendant now appeals and we affirm.

Initially, we reject defendant's contention that he was denied his right to appear before the grand jury. Defendant's counsel at the time was served with a CPL 190.50 notice on June 4, 2015, which indicated that the People would present a case against defendant to a grand jury the following day at 10:00 a.m. Defendant never served on the People written notice of his intent to testify before the grand jury. While the People's notice gave defendant approximately 24 hours or less to exercise his statutory right to appear at the grand jury proceeding, this was a reasonable period of time pursuant to the statute as there were no exceptional circumstances that precluded defendant from conferring with his attorney about the decision to testify or otherwise inhibited his ability to notify the People of his intent to testify (see People v. Dorsey, 151 A.D.3d 1391, 1392–1393, 58 N.Y.S.3d 636 [2017], lv denied 30 N.Y.3d 949, 67 N.Y.S.3d 132, 89 N.E.3d 522 [2017] ; see generally People v. Wilkerson, 140 A.D.3d 1297, 1299–1300, 33 N.Y.S.3d 523 [2016], lv denied 28 N.Y.3d 938, 40 N.Y.S.3d 366, 63 N.E.3d 86 [2016] ).

Turning to defendant's evidentiary claims, his challenge to the legal sufficiency of the evidence is unpreserved given that his motion for a trial order of dismissal at the close of the People's case was not specifically directed at the error urged before this Court (see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ; People v. Cruz, 131 A.D.3d 724, 724–725, 14 N.Y.S.3d 804 [2015], lv denied 26 N.Y.3d 1087, 23 N.Y.S.3d 644, 44 N.E.3d 942 [2015] ). "Nevertheless, our weight of the evidence review necessarily involves an evaluation of whether all elements of the charged crime were proven beyond a reasonable doubt" ( People v. Odofin, 153 A.D.3d 972, 974, 59 N.Y.S.3d 842 [2017] [internal quotation marks, brackets and citations omitted]; see People v. Cruz, 131 A.D.3d at 725, 14 N.Y.S.3d 804 ). As relevant here, "[a] person is guilty of criminal sale of a controlled substance in the third degree when he [or she] knowingly and unlawfully sells ... a narcotic drug," such as heroin ( Penal Law § 220.39[1] ; see Public Health Law § 3306 [I][c][11] ).

John Comitale, a police detective, testified that, in June 2014, he was contacted by the CI, who stated that he could buy heroin from defendant. Comitale thereafter acted as the "controlling officer" during the ensuing "buy and bust" operation that occurred later that same day. Comitale explained that the CI came to Comitale's office and called defendant to order 10 bags of heroin, which defendant stated would cost $70. Comitale obtained three $20 bills and two $5 bills from a police department safe to use for buy money and photocopied those bills, indicating the date on the photocopy. Comitale then searched the CI and, after failing to find any money or contraband, gave the CI the buy money and equipped him with a transmitter. Comitale testified that the CI thereafter left with the buy money, and a "take-down team" was assembled and positioned to arrest defendant after the transaction. Comitale then followed the CI in an unmarked vehicle until the CI indicated over the transmitter that he could see defendant. Comitale pulled over approximately 55 or 60 feet from the CI's parked vehicle and, using binoculars, observed defendant approach the CI's window and engage in a "hand-to-hand transaction." Following the transaction, defendant walked away from the CI's vehicle, and the CI said a code word over the transmitter to indicate that the deal was complete. Comitale gave a description of defendant's clothing and the direction that he was walking to the near-by police units and then followed the CI to a prearranged location where he took from the CI 10 red "glassine wax envelopes with an off-whitish, brownish powder inside." Comitale paid the CI $100 for participating in the buy and bust. He then placed the envelopes in an evidence bag and later turned the bag over to John Colaneri, a police sergeant. Comitale testified that Colaneri gave him the currency confiscated from defendant after he was arrested, which Comitale examined by comparing each bill's serial number to those photocopied before the operation, and that $70 of the currency matched the photocopied buy money.

The CI testified that earlier the same day, he approached defendant on the street, who he recognized because they were both from the same area. The CI testified that he then contacted Comitale and thereafter placed a telephone call to defendant from Comitale's office, during which he ordered 10 bags of heroin for $70. Defendant told the CI where they would meet to complete the transaction. The CI further testified that after he and his vehicle were searched, he received $70 in buy money from the police—consisting of three $20 bills and two $5 bills. The CI testified that defendant called and changed the location of the deal and, when the CI arrived at the new location, he saw defendant and parked his car. At that point, defendant approached the CI's passenger window, the CI gave defendant the buy money and defendant gave the CI 10 red "wax baggies" that he later gave to Comitale.

William Bowles, a second police detective, testified that, although he did not see the transaction between the CI and defendant, he heard Comitale's description of defendant and was able to identify and arrest him based on that description. Bowles testified that while arresting defendant, he found money on defendant's person. Colaneri testified regarding the 10 red bags that Comitale gave him and money that Bowles gave him, which he took to the police department for processing. There was also testimony from William Gillett, a civilian who works for the police department's property evidence room, regarding storage of the evidence bag and subsequent transportation of the bag to the State Police lab for testing. Kathryn Botting, a forensic scientist for the State Police, testified that she tested the substance contained in the 10 red glassine bags and determined that it was heroin. Considering the foregoing testimony, it would not have been unreasonable for the jury to come to a different conclusion given minor inconsistencies between Comitale's testimony at trial and his earlier testimony before the grand jury and at a pretrial suppression hearing, as well as inconsistencies in the CI's testimony at trial. However, viewing the evidence in a neutral light and affording due deference...