People v. Rolle

• Decision Date: 29 April 2010
• Citation: People v. Rolle, 900 N.Y.S.2d 187, 72 A.D.3d 1393 (N.Y. App. Div. 2010)
• Parties: The PEOPLE of the State of New York, Respondent, v. Bradley ROLLE, Appellant.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 187

72 A.D.3d 1393

The PEOPLE of the State of New York, Respondent,

v.Bradley ROLLE, Appellant.

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

April 29, 2010.

Peter M. Torncello, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.

Before: CARDONA, P.J., PETERS, KAVANAGH, McCARTHY and EGAN JR., JJ.

EGAN JR., J.

Appeals (1) from a judgment of the County Court of Albany County (Breslin, J.), rendered November 21, 2006, 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 and criminal possession of a controlled substance in the fifth degree, and (2) by permission, from an order of said court, entered January 22, 2008, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Following a jury trial, defendant was convicted as charged of criminal sale of a controlled substance in the third degree based upon evidence that he possessed and sold cocaine to a confidential informant (hereinafter CI) in the City of Albany on November 21, 2005, and of criminal possession of a controlled substance in the third and fifth degrees based on evidence that he possessed cocaine with the intent to sell it on December 13,2005 in Albany. Upon his conviction, defendant was sentenced to an aggregate prison term of 12 years, with six years of postrelease supervision. Defendant appeals.

The testimony at trial established that in November 2005, the CI advised Jeffrey Connery, a detective with the police department's Community Response Unit (hereinafter CRU), that he could buy drugs from unidentified individuals at a two-family residence located at 107 Lark Street in Albany. On November 21, 2005, CRU detectives and the CI traveled to the Lark Street neighborhood in an unmarked minivan, and the CI, equipped with a wire (a sound transmitting device) and $40 in buy money, was observed by detectives meeting a black male wearing a gray sweat suit in front of 107 Lark Street. Both men entered the building, and detectives overheard a drug transaction via the wire. After exiting the building, the CI returned to the minivan and turned over a substance that forensic testing later revealed to be .33 milligrams of cocaine. While the CI was acquainted with the person from whom he purchased the cocaine, he did not know his name, but described him as dark-skinned, wearing a gray sweatsuit and a black do-rag. The individual was similarly described by Connery and Detectives Kenneth Koonz and Dennis Guiry, who were also monitoring the controlled buy.

Back at the police station, Connery gave a description of the unidentified subject to Detective Sergeant Jeffrey Roberts, also an officer assigned to the CRU who was familiar with the Lark Street neighborhood. That evening, Roberts drove by the Lark Street address and observed an individual he knew from previous encounters to be defendant. Roberts contacted Connery and requested that Koonz drive to the vicinity of the Lark Street address to see if he recognized anyone from the controlled buy. Thereafter, Koonz arrived in the vicinity of 107 Lark Street and confirmed with Roberts that the individual who entered that address with the CI earlier that day was the same individual Roberts knew to be defendant. The CI thereafter positively identified defendant from a photo array as the individual who participated in the controlled buy.

On December 13, 2005, a search warrant was obtained and executed at 107 Lark Street. Although defendant was named as one of the targets of the warrant, he was not at the premises at the time it was executed, although several other persons were arrested. As the officers, including Roberts, were leaving the scene, defendant walked in front of their unmarked police vehicle, crossing the street. Roberts and other officers followed defendant into a nearby bar and arrested him. A pat-down search of defendant uncovered what later forensic testing revealed to be 2,400 milligrams of cocaine hidden inside a cigarette pack.

Defendant first argues that he was deprived of his statutory right to testify at the grand jury proceedings ( see CPL 190.50[5][a] ) and that he was provided with insufficient notice of presentment ( see CPL 190.50[5][b] ). An objection by a defendant to a claimed violation of his or her rights under CPL 190.50 must be made by a motion to dismiss the indictment no later than five days after arraignment on the indictment, or the defendant's challenges will be deemed waived ( see CPL 190.50[5][c]; People v. Weis, 56 A.D.3d 900, 901-902, 867 N.Y.S.2d 250 [2008], lv. denied 12 N.Y.3d 763, 876 N.Y.S.2d 715, 904 N.E.2d 852 [2009]; People v. Bass, 255 A.D.2d 689, 692-693, 681 N.Y.S.2d 101 [1998], lv. denied 93 N.Y.2d 966, 695 N.Y.S.2d 52, 716 N.E.2d 1097 [1999]; People v. Brown, 227 A.D.2d 691, 692, 641 N.Y.S.2d 763 [1996], lv. denied 88 N.Y.2d 980, 649 N.Y.S.2d 387, 672 N.E.2d 613 [1996] ). Here, defendant was arraigned on the superseding indictment on April 20, 2006, and it is conceded that no such motion was ever made. Accordingly, defendant's challenges regarding the notice of presentment to and his right to testify before the grand jury are deemed waived.

We are not persuaded by defendant's contention that County Court committed reversible error in permitting defendant to represent himself at the Mapp/Dunaway hearing. County Court granted defendant's unequivocal request to proceed pro se based upon his disagreement with counsel's questioning during cross-examination, and only after an appropriate inquiry was conducted by the court ( see People v. McIntyre, 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 [1974]; compare People v. Arroyo, 98 N.Y.2d 101, 103-104, 745 N.Y.S.2d 796, 772 N.E.2d 1154 [2002]; People v. Tafari, 68 A.D.3d 1540, 1541, 891 N.Y.S.2d 711 [2009] ). Defendant's waiver of his right to counsel was made competently, intelligently and voluntarily and, "[u]pon a review of the record, it cannot be said that defendant's behavior was aimed at purposefullydelaying the proceedings or preventing an orderly trial but, rather, the record reflects that he engaged in efforts to defend himself for legitimate reasons" ( People v. Tafari, 68 A.D.3d at 1541, 891 N.Y.S.2d 711).

Furthermore, we find that County Court properly concluded, after the Mapp/Dunaway hearing, that probable cause existed for defendant's arrest based on the information received from the CI, the observations of the detectives monitoring the controlled buy, together with the CI's positive identification of defendant from a photo array conducted prior to the arrest ( see generally People v. Shulman, 6 N.Y.3d 1, 25-26, 809 N.Y.S.2d 485, 843 N.E.2d 125 [2005], cert. denied 547 U.S. 1043, 126 S.Ct. 1623, 164 L.Ed.2d 339 [2006]; People v. Tillman, 57 A.D.3d 1021, 1022-1023, 867 N.Y.S.2d 793 [2008] ). Thus, County Court properly denied defendant's motion to suppress the drugs found in his possession. Defendant's challenge regarding the failure of the court to conduct an Aguilar/Spinelli hearing was not preserved for appellate review. In any event, we find that the CI's reliability was amply established based on the circumstances surrounding the controlledbuy and the CI's subsequent identification of defendant ( see People v. Glover, 23 A.D.3d 688, 688-689, 803 N.Y.S.2d 272 [2005], lv. denied 6 N.Y.3d 776, 811 N.Y.S.2d 343, 844 N.E.2d 798 [2006] ).

Defendant next contends that gaps existed in the chain of custody of the cocaine evidence. Such gaps may be excused where, as here, the testimony of the detective assigned to transport the evidence and the testimony of the forensic scientists assigned to test the evidence, together with the lack of any evidence of tampering, provide reasonable assurances of the identity and unchanged condition of the evidence ( see People v. Hawkins, 11 N.Y.3d 484, 494, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008]; People v. Welch, 71 A.D.3d 1329, 1331, 897 N.Y.S.2d 546 [2010] ). In addition, gaps in the chain of custody identified by defendant relate to the weight of the evidence, not its admissibility ( see People v. Hawkins, 11 N.Y.3d at 494, 872 N.Y.S.2d 395, 900 N.E.2d 946; People v. Welch, 71 A.D.3d at 1331, 897 N.Y.S.2d 546; People v. Bellamy, 34 A.D.3d 937, 939, 823 N.Y.S.2d 607 [2006], lv. denied 8 N.Y.3d 843, 830 N.Y.S.2d 702, 862 N.E.2d 794 [2007] ).

We turn next to defendant's contention that his conviction for criminal sale of a controlled substance in the third degree was not supported by legally sufficient evidence. Defendant further argues that there is insufficient proof identifying him as the person who sold the cocaine on November 21, 2005 and, as a result, all of his convictions are against the weight of the evidence.

"When considering a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the People and will not disturb the verdict if the evidence demonstrates a valid line of reasoning and permissible inferences that could lead a rational person to the conclusion reached by the jury" ( People v. Maricevic, 52 A.D.3d 1043, 1044, 860 N.Y.S.2d 666 [2008], lv. denied 11 N.Y.3d 790, 866 N.Y.S.2d 617, 896 N.E.2d 103 [2008]; see People v. Hampton, 64 A.D.3d 872, 874, 883 N.Y.S.2d 338 [2009], lv. denied 13 N.Y.3d 796, 887 N.Y.S.2d 546, 916 N.E.2d 441 [2009] ). Criminal sale of a controlled substance in the third degree requires proof that defendant knowingly and unlawfully sold a narcotic drug ( see Penal Law § 220.39[1]; § 220.00[7] ). Based on the testimony of the police...