People v. Quintana

• Decision Date: 08 March 2018
• Docket Number: 107273
• Citation: 71 N.Y.S.3d 752,159 A.D.3d 1122
• Parties: The PEOPLE of the State of New York, Respondent, v. Jason QUINTANA, also known as John, Appellant.
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 1122

71 N.Y.S.3d 752

The PEOPLE of the State of New York, Respondent,

v.Jason QUINTANA, also known as John, Appellant.

107273

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

Calendar Date: January 8, 2018

Decided and Entered: March 8, 2018

Lucas G. Mihuta, Albany, for appellant.

Chad W. Brown, District Attorney, Johnstown (Amanda M. Nellis of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Rumsey, JJ.

MEMORANDUM AND ORDER

Clark, J.Appeal from a judgment of the County Court of Fulton County (Hoye, J.), rendered December 15, 2014, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts).

In July 2013, members of the City of Gloversville Police Department conducted two controlled buys in which a confidential informant (hereinafter CI) purchased heroin from defendant. Defendant was thereafter charged in an indictment with two counts of criminal sale of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the third degree. Prior to trial, defendant moved to suppress identification evidence on the basis that the identification procedure was unduly suggestive. A Wade hearing ensued, after which County Court found that the photo array used to identify defendant was not unduly suggestive and denied defendant's motion to suppress that photo array. Following a jury trial, defendant was convicted of all four counts. County Court thereafter sentenced defendant, as a second felony offender, to an aggregate prison term of eight years, to be followed by three years of postrelease supervision. Defendant now appeals.

As an initial matter, defendant argues that the indictment is defective as it does not contain the requisite signature of the grand jury foreperson as required by statute (see CPL 200.50[8] ). Inasmuch as the absence of a jury foreperson's signature on an indictment is a "technical, nonjurisdictional defect" ( People v. Stauber, 307 A.D.2d 544, 545, 763 N.Y.S.2d 854 [2003], lv denied 100 N.Y.2d 599, 766 N.Y.S.2d 175, 798 N.E.2d 359 [2003] ; see People v. Pigford, 148 A.D.3d 1299, 1302, 48 N.Y.S.3d 837 [2017], lv denied 29 N.Y.3d 1085, 64 N.Y.S.3d 175, 86 N.E.3d 262 [2017] ), defendant's failure to move to dismiss the indictment on this basis renders his claim unpreserved (see People v. Pigford, 148 A.D.3d at 1302, 49 N.Y.S.3d 763 ; People v. Burch, 97 A.D.3d 987, 988, 948 N.Y.S.2d 742 [2012], lv denied 19 N.Y.3d 1101, 955 N.Y.S.2d 556, 979 N.E.2d 817 [2012] ; People v. Striplin, 48 A.D.3d 878, 879, 851 N.Y.S.2d 685 [2008], lv denied 10 N.Y.3d 871, 860 N.Y.S.2d 497, 890 N.E.2d 260 [2008] ). Were this claim preserved, we would nonetheless find it to be without merit. An indictment signed by the District Attorney with an affixed backer signed by the grand jury foreperson satisfies the statutory requirements (see CPL 200.50[8], [9] ; People v. Broomfield, 128 A.D.3d 1271, 1272, 9 N.Y.S.3d 733 [2015], lv denied 26 N.Y.3d 1086, 23 N.Y.S.3d 643, 44 N.E.3d 941 [2015] ; People v. Burch, 97 A.D.3d at 988, 948 N.Y.S.2d 742 ; People v. Striplin, 48 A.D.3d at 879, 851 N.Y.S.2d 685 ). Here, the record before us reflects that the indictment contains a backer with the grand jury foreperson's signature, along with "the name of the District Attorney typed on the same page" ( People v. Pigford, 148 A.D.3d at 1302, 49 N.Y.S.3d 763 ).

Defendant contends that the verdict is not supported by legally sufficient evidence and was against the weight of the evidence. The standard for reviewing the legal sufficiency of the evidence in a criminal case is well-established (see People v. Bueno, 18 N.Y.3d 160, 169, 936 N.Y.S.2d 636, 960 N.E.2d 405 [2011] ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; People v. Byrd, 152 A.D.3d 984, 986, 59 N.Y.S.3d 539 [2017] ). 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" ( Penal Law § 220.39[1] ). Additionally, "[a] person is guilty of criminal possession of a controlled substance in the third degree when he [or she] knowingly and unlawfully possesses ... a narcotic drug with intent to sell" ( Penal Law § 220.16[1] ).

At trial, the testimony established that defendant sold heroin to a CI during two controlled buys that were monitored by the members of the City of Gloversville Police Department. Detective Sergeant Michael Jory explained that, for both controlled buys, he searched the CI to ensure that the CI had no money or illegal items, provided him with the money to be used for the controlled buys, and observed him depart the predetermined location and return to that location at the conclusion of each buy. Detective Michael Calbet testified that, for both controlled buys, he personally observed the CI walk to defendant's house, enter a pathway toward the back porch, which could be used to access defendant's apartment, and then exit the porch sometime later and walk back to Jory. Captain Anthony Clay testified that, with regard to the first controlled buy, he observed the CI walk to defendant's house and then walk back to Jory. In addition to identifying defendant in court as the person from whom he purchased heroin on both occasions, the CI testified that, as to each controlled buy, he was searched by Jory prior to the controlled buy, given buy money and dropped off at a predetermined location at which point he walked to defendant's house. With regard to the first controlled buy, the CI explained that he intended to purchase heroin from defendant's brother but, once he arrived at the house, he purchased heroin from defendant. The CI also described how, upon arriving at defendant's house and knocking on the door, defendant let him enter, whereupon the CI purchased five bags of heroin at a total cost of $160 and then left the residence to return and give the five bags of heroin to Jory. The People also elicited the testimony of two forensic scientists with the State Police Crime Lab, who analyzed the substances obtained from the controlled buys and positively identified each substance obtained as heroin. Moreover, each scientist, in their respective reports, identified the substance tested from the controlled buys as "heroin—narcotic drug."

In view of the foregoing evidence, we find that the evidence proffered at trial established, beyond a reasonable doubt, that defendant knowingly and unlawfully possessed heroin, a narcotic drug, with the intent to sell it and, indeed, knowingly and unlawfully sold heroin to the CI on two separate occasions (see Penal Law §§ 220.16[1] ; 220.39[1]; People v. Gibson, 121 A.D.3d 1416, 1417–1418, 995 N.Y.S.2d 383 [2014], lv denied 24 N.Y.3d 1119, 3 N.Y.S.3d 761, 27 N.E.3d 475 [2015] ; People v. Stevens, 87 A.D.3d 754, 754–755, 928 N.Y.S.2d 146 [2011], lvs denied 18 N.Y.3d 861, 938 N.Y.S.2d 869, 962 N.E.2d 294 [2011] ). As to defendant's specific contention on appeal that the People failed to prove at trial that heroin is a narcotic, Penal Law § 220.00 defines a controlled substance as, among others, those listed under schedule I of Public Health Law § 3306 (see Penal Law § 220.00[5] ); a "[n]arcotic drug means any controlled substance listed in schedule ... I(c)" ( Penal Law § 220.00[7] [internal quotation marks omitted] ) and heroin is listed as a controlled substance in the Public Health Law (see Public Health Law § 3306[I][c] ). Inasmuch as both forensic scientists testified that the substances from the controlled buys tested positive for heroin and that their reports further identified the substances tested as heroin and a narcotic drug, we find that, when viewing the evidence in the light most favorable to the People and drawing every inference in their favor (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Warrington, 146 A.D.3d 1233, 1235, 45 N.Y.S.3d 683 [2017], lv denied 29 N.Y.3d 1038, 62 N.Y.S.3d 307, 84 N.E.3d 979 [2017] ), the evidence produced at trial was also legally sufficient to establish heroin as a narcotic (see People v. McGriff, 201 A.D.2d 672, 673, 607 N.Y.S.2d 980 [1994], lv denied 83 N.Y.3d 913 [1994]; People v. Jackson, 155 A.D.2d 895, 895, 548 N.Y.S.2d 362 [1989], lv denied 75 N.Y.2d 920, 555 N.Y.S.2d 38, 554 N.E.2d 75 [1990] ; People v. Tramell, 152 A.D.2d 989, 990, 543 N.Y.S.2d 596 [1989] ).

As to defendant's claim that the verdict was against the weight of the evidence, where, as here, an alternative verdict would not have been unreasonable, we must, "like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [internal quotation marks and citation omitted] ). In particular, defendant contends that the testimony of the CI was not corroborated. "An informant acting as an agent of the police without the intent to commit a crime is not an accomplice whose testimony requires corroboration" ( People v. Thaddies, 50 A.D.3d 1249, 1249–1250, 855 N.Y.S.2d 740 [2008] [internal quotation marks and citations omitted], lv denied 10 N.Y.3d 965, 863 N.Y.S.2d 149, 893 N.E.2d 455 [2008] ; accord People v. Van Hoesen, 145 A.D.3d 1183, 1184, 44 N.Y.S.3d 212 [2016] ). As the CI acted as an agent of the police, the corroboration of his testimony was not required (see People v. Van Hoesen, 145 A.D.3d at 1184, 44 N.Y.S.3d 212 ; People v. Thaddies, 50 A.D.3d at 1249–1250, 855 N.Y.S.2d 740 ). In any event, the testimony of the police officers concerning their observations of the controlled buys and the heroin sold to the CI by defendant, which the CI tendered to the police, sufficiently corroborates the CI's testimony. Moreover, d...