People v. Stevens

• Decision Date: 04 August 2011
• Citation: 2011 N.Y. Slip Op. 06146,928 N.Y.S.2d 146,87 A.D.3d 754
• Parties: The PEOPLE of the State of New York, Respondent,v.Jermell STEVENS, Also Known as Murder, Appellant.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 754

928 N.Y.S.2d 146

2011 N.Y. Slip Op. 06146

The PEOPLE of the State of New York, Respondent,

v.Jermell STEVENS, Also Known as Murder, Appellant.

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

Aug. 4, 2011.

Tara Brower Wells, Latham, for appellant.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.Before: PETERS, J.P., ROSE, LAHTINEN, MALONE JR. and McCARTHY, JJ.MALONE JR., J.

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered June 4, 2008, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.

Defendant was charged in a two-count indictment with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. These charges arose from a controlled buy of cocaine that occurred between defendant and a confidential informant (hereinafter CI) in the City of Schenectady, Schenectady County on July 17, 2007. Following a trial, a jury found defendant guilty of the charges in the indictment. Defendant was then sentenced, as a second felony offender, to 10 years in prison and two years of postrelease supervision on each count, to run concurrently. Defendant appeals.

Initially, defendant challenges the weight and legal sufficiency of the evidence.¹ Upon a review of the record, we are satisfied that the People established beyond a reasonable doubt that defendant both knowingly and unlawfully possessed cocaine with the intent to sell it and knowingly and unlawfully sold cocaine ( see Penal Law § 220.16[1]; § 220.39[1] ). Testimony at trial established that, in July 2007, the CI told an investigator with the Division of Parole that an individual operating under the street name “Murder” was selling drugs out of the CI's residence. Defendant was identified as this individual and, after confirming defendant's identity with the CI, the investigator and a detective from the Schenectady County Sheriff's Department arranged for the CI to complete a controlled buy from defendant. The substance bought from defendant by the CI was determined to be cocaine. Although defendant contends that the evidence does not conclusively establish that he was the seller, the CI made in-court and out-of-court identifications of him and, at trial, testified that he was able to identify defendant as the seller because defendant had occupied his apartment for a period of time and because he had previously purchased drugs from defendant. In addition, the CI's identification of defendant as the seller was corroborated by the testimony of the police involved in the controlled buy operation and by the evidence discovered during the execution of a search warrant in the residence where defendant was located ( see People v. Lawal, 73 A.D.3d 1287, 1289, 900 N.Y.S.2d 515 [2010]; People v. Chatham, 55 A.D.3d 1045, 1046, 865 N.Y.S.2d 402 [2008], lv. denied 14 N.Y.3d 839, 901 N.Y.S.2d 145, 927 N.E.2d 566 [2010] ). Under these circumstances, we cannot say that the verdict is against the weight of the evidence.

Next, the testimony at the suppression hearing demonstrated that, contrary to defendant's contention, the pretrial identification procedure was reasonable and not unduly suggestive. The photographs in the array that was shown to the informant depict men of the same race and approximate age as defendant and appear with similar haircuts and facial hair ( see People v. Ramos, 48 A.D.3d 984, 987, 851 N.Y.S.2d 724 [2008], lvs. denied 10 N.Y.3d 938, 862 N.Y.S.2d 345, 892 N.E.2d 411 [2008], cert. denied ––– U.S. ––––, 129 S.Ct. 1595, 173 L.Ed.2d 686 [2009]; People v. Rumrill, 40 A.D.3d 1273, 1274, 836 N.Y.S.2d 333 [2007], lv. denied 9 N.Y.3d 926, 844 N.Y.S.2d 181, 875 N.E.2d 900 [2007] ), and the CI was instructed to disregard any differences in the style of the photographs ( see People v. Lawal, 73 A.D.3d at 1288, 900 N.Y.S.2d 515). We are not persuaded that the identification was unduly suggestive because the CI had been shown a photograph of defendant by the investigator prior to the controlled buy. The two photographs were different, and there was no indication that the investigator showed the photograph to the CI to be suggestive. Moreover, because the CI was independently familiar with defendant, his identification of defendant as the perpetrator was merely confirmatory, and there was little risk that any alleged suggestiveness led to a misidentification ( see People v. Sanchez, 75 A.D.3d 911, 912, 905 N.Y.S.2d 692 [2010], lv. denied 15 N.Y.3d 895, 912 N.Y.S.2d 583, 938 N.E.2d 1018 [2010] ).

Next, County Court did not err by admitting evidence of defendant's prior uncharged crimes and other background information. The evidence regarding defendant's activities, the activities of defendant's organization, his street name and prior drug sales was relevant information to establish defendant's identity and absence of mistake ( see People v. Giles, 11 N.Y.3d 495, 499, 873 N.Y.S.2d 244, 901 N.E.2d 737 [2008]; People v. Molineux, 168 N.Y. 264, 293, 61 N.E. 286 [1901] ) and provided necessary background information with respect to defendant's relationship with the CI ( see People v. Tarver, 2 A.D.3d 968, 969, 768 N.Y.S.2d 391 [2003] ). The court properly mitigated the prejudicial effect of this evidence by specifically limiting the testimony that the People were able to elicit at trial and by giving appropriate limiting instructions to the jury ( see People v. Garcia, 33 A.D.3d 1050, 1051, 822 N.Y.S.2d 322 [2006]...