People v. Singleton

• Decision Date: 21 January 2016
• Citation: 25 N.Y.S.3d 378,135 A.D.3d 1165
• Parties: The PEOPLE of the State of New York, Respondent, v. Derick L. SINGLETON, Appellant.
• Court: New York Supreme Court — Appellate Division

135 A.D.3d 1165

25 N.Y.S.3d 378

The PEOPLE of the State of New York, Respondent,

v.Derick L. SINGLETON, Appellant.

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

Jan. 21, 2016.

Mark Diamond, Albany, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Susan Rider–Ulacco of counsel), for respondent.

Before: LAHTINEN, J.P., GARRY, ROSE, LYNCH and DEVINE, JJ.

DEVINE, J.

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered November 22, 2013, upon a verdict convicting defendant of the crime of criminal possession of a controlled substance in the third degree (two counts).

On March 2, 2013, Jelene Peck was driving a vehicle with two passengers, Wade Smith and defendant, in the City of Elmira, Chemung County. A police officer observed an air freshener hanging from the rear view mirror that purportedly obstructed Peck's view through the windshield (seeVehicle and Traffic Law § 375[30] ), and he proceeded to stop the vehicle. A routine check determined that defendant had active warrants against him and, as defendant was exiting the vehicle to be placed under arrest, the officer observed a crack pipe on the floorboard. The officer obtained Peck's consent to search the vehicle and discovered a small baggie of crack cocaine near the driver's side door, as well as three larger baggies of crack cocaine wedged between the driver's seat and the center console.

Defendant, who had been sitting in the front passenger seat, was thereafter charged in an indictment with two counts of criminal possession of a controlled substance in the third degree. Following a Mapp hearing, his motion to suppress the evidence recovered in the search of the vehicle was denied. The first trial on the indictment ended when the People elicited testimony violative of County Court's Molineux ruling, prompting defendant to successfully move for a mistrial. County Court held that a retrial was not barred by double jeopardy and, at the conclusion of the second trial, defendant was convicted as charged. County Court sentenced defendant, a second felony offender, to concurrent prison terms of six years to be followed by postrelease supervision of three years. Defendant appeals, and we affirm.

Defendant contends that the second trial was barred by double jeopardy but, because he was the one who sought the mistrial, such would only be the case if "the prosecution deliberately provoke[d]" him into doing so (Matter of Davis v. Brown, 87 N.Y.2d 626, 630, 641 N.Y.S.2d 819, 664 N.E.2d 884 [1996] ; see Matter of Gorghan v. DeAngelis, 7 N.Y.3d 470, 473, 824 N.Y.S.2d 202, 857 N.E.2d 523 [2006] ; Matter of Phillips v. Carnright, 66 A.D.3d 1319, 1320, 887 N.Y.S.2d 724 [2009] ). In that regard, Peck was expected to testify that she and Smith had known defendant for about six months before March 2013, and that they often gave defendant rides. County Court issued a Molineux ruling barring the People from eliciting testimony revealing that defendant paid for those rides with crack cocaine. Peck made no mention of the prior exchanges of drugs during her testimony at the first trial, but Smith answered a vague question about "the nature of [his] relationship" with defendant by saying that "[i]t was strictly cocaine." There is no indication in the record that the People asked this question in a gambit to goad defendant into moving for a mistrial due to fear that "the case [was] headed toward acquittal," a fear that would have been misguided given the evidence already introduced that defendant had possessed a large quantity of crack cocaine and other items indicating that he was involved in the drug trade at the time of the traffic stop (Matter of Davis v. Brown, 87 N.Y.2d at 630, 641 N.Y.S.2d 819, 664 N.E.2d 884 ; see Matter of Phillips v. Carnright, 66 A.D.3d at 1320, 887 N.Y.S.2d 724 ; People v. Stewart, 57 A.D.3d 1312, 1313, 870 N.Y.S.2d 157 [2008], lv. denied 12 N.Y.3d 788, 879 N.Y.S.2d 65, 906 N.E.2d 1099 [2009], cert. denied 558 U.S. 1116, 130 S.Ct. 1047, 175 L.Ed.2d 890 [2010] ). The questioning by the People may have been indicative of intemperate advocacy "inten[ded] to secure a conviction," but "a new, fair trial" is the proper remedy for such excesses (Matter of Gorghan v. DeAngelis, 7 N.Y.3d at 474, 824 N.Y.S.2d 202, 857 N.E.2d 523 ).

Count 2 of the indictment charged defendant with "knowingly and unlawfully possess[ing]" crack cocaine "of an aggregate weight of one-half ounce or more," and he argues that his conviction on that count was against the weight of the evidence (Penal Law § 220.16[12] ).¹ Defendant does not take issue with the proof presented to show that he knowingly and unlawfully possessed the cocaine which, in any case, is amply established by Peck's testimony. Defendant instead asserts that proof of the aggregate weight is wanting, but a forensic scientist testified that he used a scale in good working order to determine that the cocaine found in two of the baggies weighed "[a]pproximately 14.47 grams," well over the 14.17 grams equivalent to half an ounce. He further testified that he did not weigh the cocaine in a third baggie, as laboratory policy dictated that he "test [only] to the highest possible charge." Viewing this proof in a neutral light and according appropriate deference to the credibility determinations of the jury, we do not find the conviction on count 2 to be against the weight of the evidence (see People v. Parker, 84 A.D.3d 1508, 1509–1510, 922 N.Y.S.2d 655 [2011], lv. denied 18 N.Y.3d 927, 942 N.Y.S.2d 466, 965 N.E.2d 968 [2012] ; People v. Butler, 190 A.D.2d 743, 743–744, 593 N.Y.S.2d 332 [1993], lv. denied 81 N.Y.2d 968, 598 N.Y.S.2d 769, 615 N.E.2d 226 [1993] ). Moreover, inasmuch as sufficient proof was presented with regard to the weight of the cocaine, defense counsel was not ineffective in failing to specifically move for...