People v. Richardson

• Citation: 162 A.D.3d 1328,79 N.Y.S.3d 734
• Decision Date: 21 June 2018
• Docket Number: 109775
• Parties: The PEOPLE of the State of New York, Respondent, v. Karreim RICHARDSON, Appellant.
• Court: New York Supreme Court — Appellate Division

162 A.D.3d 1328
79 N.Y.S.3d 734

The PEOPLE of the State of New York, Respondent,
v.
Karreim RICHARDSON, Appellant.

109775

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

Calendar Date: May 3, 2018
Decided and Entered: June 21, 2018

79 N.Y.S.3d 736

Danielle Neroni Reilly, Albany, for appellant.

P. David Soares, District Attorney, Albany (Emily Schultz of counsel, New York), for respondent.

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

MEMORANDUM AND ORDER

Clark, J.

Appeal from a judgment of the Supreme Court (McDonough, J.), rendered July 1, 2016 in Albany County, upon a verdict convicting defendant of the crime of criminal possession of a weapon in the second degree (five counts).

In May 2015, a detective with the City of Albany Police Department received information from a confidential informant (hereinafter CI) indicating that the CI was able to procure firearms from a contact by the name of "Trey." An investigation of the telephone number furnished by the CI revealed that the number was registered out of Virginia in defendant's name, and the decision was made to initiate a controlled buy operation targeting defendant. After a series of monitored telephone calls and text messages, defendant initially agreed to sell one firearm to the CI through the mail, which was thereafter successfully intercepted by law enforcement. As a result of additional controlled telephone calls and text messages, defendant agreed to drive from Virginia to the City of Albany to sell the CI five more firearms under the ruse that the CI would resell the firearms in the Albany area. On July 19, 2015, pursuant to an arrest warrant, defendant was apprehended and arrested on the University at Albany campus, along with the three other occupants of his vehicle. A search of said vehicle resulted in the recovery of five firearms of the sort requested by the CI. Defendant was then charged with five counts of criminal possession of a weapon in the second degree and, following a jury trial with his codefendant, was convicted as charged. Supreme Court thereafter sentenced him to five concurrent prison terms

79 N.Y.S.3d 737

of 12 years, followed by five years of postrelease supervision. Defendant appeals, and we affirm.

Initially, defendant argues that the warrant for his arrest lacked the requisite probable cause and, thus, any physical evidence seized or statements made to police upon his arrest should have been suppressed. While defendant did move for such relief in his omnibus motion and a Mapp/Dunaway/Huntley hearing was in fact held, the record reveals that defendant withdrew his motion after the suppression hearing, thereby abandoning his motion and rendering unpreserved any challenges with respect to the warrant (see CPL 470.05[2] ; People v. Collier , 146 A.D.3d 1146, 1147, 46 N.Y.S.3d 276 [2017], lv denied 30 N.Y.3d 948, 67 N.Y.S.3d 131, 89 N.E.3d 521 [2017] ; People v. Williams , 45 A.D.3d 1466, 1467, 845 N.Y.S.2d 674 [2007], lv denied 10 N.Y.3d 818, 857 N.Y.S.2d 51, 886 N.E.2d 816 [2008] ). Relatedly, defendant inaccurately asserts that Supreme Court denied his request for a Darden hearing. Rather, the court expressly reserved decision on the request until after the suppression hearing, subject to defendant's renewal, which was never made (see generally People v. Lewis , 39 A.D.3d 1025, 1026, 833 N.Y.S.2d 757 [2007] ).

Turning to defendant's evidentiary challenges, defendant's contentions that photographs of text messages and audio recordings of telephone conversations between him and the CI were admitted without proper foundation are unpreserved for our review in light of his failure to object to the admission of such evidence at trial (see People v. Muller , 155 A.D.3d 1091, 1093, 64 N.Y.S.3d 698 [2017], lv denied 30 N.Y.3d 1118, 77 N.Y.S.3d 343, 101 N.E.3d 984 [2018] ; People v. Chappelle , 126 A.D.3d 1127, 1128, 4 N.Y.S.3d 760 [2015], lv denied 25 N.Y.3d 1161, 15 N.Y.S.3d 293, 36 N.E.3d 96 [2015] ). Were these arguments preserved, we would find that the People established a proper foundation for both the admission of the photographs (see People v. Green , 107 A.D.3d 915, 916–917, 967 N.Y.S.2d 753 [2013], lv denied 22 N.Y.3d 1088, 981 N.Y.S.2d 673, 4 N.E.3d 975 [2014] ; compare People v. Price , 29 N.Y.3d 472, 477, 58 N.Y.S.3d 259, 80 N.E.3d 1005 [2017] ) and the audio recordings (see People v. Starr , 114 A.D.3d 813, 814, 980 N.Y.S.2d 161 [2014], lv denied 23 N.Y.3d 1068, 994 N.Y.S.2d 327, 18 N.E.3d 1148 [2014] ; compare People v. Vanhoesen , 31 A.D.3d 805, 807–808, 819 N.Y.S.2d 319 [2006] ).

Defendant also contends that, in violation of People v. Trowbridge, 305 N.Y. 471, 476–477, 113 N.E.2d 841 [1953] and the Confrontation Clauses of the State and Federal Constitutions (see U.S. Const 6th Amend; NY Const, art I, § 6 ), two police officers were impermissibly allowed to testify as to pretrial identifications of defendant made by the CI, who did not testify. Defendant largely failed to preserve this contention by not making proper objections at trial (see People v. Cade , 110 A.D.3d 1238, 1241, 973 N.Y.S.2d 432 [2013], lv denied 22 N.Y.3d 1155, 984 N.Y.S.2d 638, 7 N.E.3d 1126 [2014] ; People v. Carter , 40 A.D.3d 1211, 1212, 836 N.Y.S.2d 715 [2007], lv denied 9 N.Y.3d 864, 840 N.Y.S.2d 893, 872 N.E.2d 1199 [2007] ). However, in one instance, defendant did object on Trowbridge grounds to the testimony by one police officer that the CI had identified defendant in a photo array. This statement, as well as all of the challenged testimony, was elicited on cross-examination by defense counsel (see People v. Rosenberg , 103 A.D.3d 531, 532, 959 N.Y.S.2d 488 [2013], lv denied 21 N.Y.3d 946, 968 N.Y.S.2d 9, 990 N.E.2d 143 [2013] ) and, moreover, was admissible to explain the events that precipitated defendant's

79 N.Y.S.3d 738

arrest (see People v. Mulligan , 118 A.D.3d 1372, 1374, 988 N.Y.S.2d 354 [2014], lv denied 25 N.Y.3d 1075, 12 N.Y.S.3d 626, 34 N.E.3d 377 [2015] ; People v. Capers , 94 A.D.3d 1475, 1476, 942 N.Y.S.2d 731 [2012], lv denied 19 N.Y.3d 971, 950 N.Y.S.2d 354, 973 N.E.2d 764 [2012] ).

As for defendant's Molineux challenge, we find that Supreme Court did not abuse its discretion in permitting evidence of defendant's uncharged controlled sale of a gun through the mail and the communications between him and the CI regarding the sale of firearms. Such evidence was relevant in establishing defendant's motive and intent, an overall scheme or plan and the absence of mistake, as well as to provide necessary background information, and was more probative than prejudicial (see People v. Victor , 139 A.D.3d 1102, 1109, 31 N.Y.S.3d 257 [2016], lv denied 28 N.Y.3d 1076, 47 N.Y.S.3d 234, 69 N.E.3d 1030 [2016] ; People v. Kidd , 112 A.D.3d 994, 995–996, 976 N.Y.S.2d 309 [2013], lv denied 23 N.Y.3d 1039, 993 N.Y.S.2d 253, 17 N.E.3d 508 [2014] ). With respect to the testimony that defendant was in possession of a stolen firearm, which was not initially part of the People's proffer or encompassed by the court's Molineux ruling, the court limited the potential for any undue prejudice by instructing the jury, on two occasions, not to infer that defendant had a propensity for criminality based upon his possession of the allegedly stolen firearm (see People v. Roberts , 161 A.D.3d 1381, ––––, 77 N.Y.S.3d 587, 2018 N.Y. Slip Op. 03563, *2 [2018] ; People v. Palin , 158 A.D.3d 936, 941, 70 N.Y.S.3d 616 [2018], lv denied 31 N.Y.3d 1016, 78 N.Y.S.3d 286, 102 N.E.3d 1067 [2018] ). Lastly, defendant did not object to the testimony that law enforcement believed "some parties were coming up to exchange some guns and ... what [they] believed to be cocaine for money." If his challenge to the foregoing testimony had been preserved, we would find that such testimony provided necessary context and background information or otherwise completed the relevant witness's narrative (see People v. Rivera , 124 A.D.3d 1070, 1073, 2 N.Y.S.3d 279 [2015], lvs denied 26 N.Y.3d 971, 18 N.Y.S.3d 607, 40 N.E.3d 585 [2015] ).

Further, defendant failed to object to the litany of statements during the prosecutor's summation that he now contends deprived him of a fair trial, rendering his prosecutorial misconduct argument unpreserved (see People v. Kerley , 154 A.D.3d 1074, 1076, 63 N.Y.S.3d 538 [2017], lv denied 30 N.Y.3d 1106, 77 N.Y.S.3d 5, 101 N.E.3d 391 [2018] ; People v. Johnson , 151 A.D.3d 1462, 1465–1466, 58 N.Y.S.3d 213 [2017], lv denied 30 N.Y.3d 1106, 77 N.Y.S.3d 5, 101 N.E.3d 391 [2018] ).¹ In any event, our review of the record reveals that each of the challenged statements was fair comment on the evidence and made in direct response to defense counsel's summation (see People v. Deshane , 160 A.D.3d 1216, 1218, 74 N.Y.S.3d 418 [2018] ; People v. Cole , 150 A.D.3d 1476, 1482, 52 N.Y.S.3d 744 [2017] ;

79 N.Y.S.3d 739

People v. Anderson , 149 A.D.3d 1407, 1414, 54 N.Y.S.3d 176 [2017], lv denied 30 N.Y.3d 947, 67 N.Y.S.3d 130, 89 N.E.3d 520 [2017] ; People v. Wynn , 149 A.D.3d 1252, 1256, 52 N.Y.S.3d 136 [2017], lv denied 29 N.Y.3d 1136, 64 N.Y.S.3d 686, 86 N.E.3d 578 [2017] ).

We next address defendant's various claims of ineffective assistance of counsel. "[D]efendant's criticisms of counsel must amount to more...