People v. Sumpter

Citation191 A.D.3d 1160,143 N.Y.S.3d 145
Decision Date25 February 2021
Docket Number110190
Parties The PEOPLE of the State of New York, Respondent, v. Shamar J. SUMPTER, Appellant.
CourtNew York Supreme Court Appellate Division

Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.

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

Before: Garry, P.J., Lynch, Clark, Aarons and Colangelo, JJ.

MEMORANDUM AND ORDER

Lynch, J.

Appeal from a judgment of the County Court of Fulton County (Sira, J.), rendered December 20, 2017, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree.

In November 2016, defendant was charged by indictment with two counts each of criminal sale of a controlled substance in the third degree (counts 1 and 3) and criminal possession of a controlled substance in the third degree (counts 2 and 4) in connection with two controlled-buy operations that occurred on August 15, 2016 and November 2, 2016. In July 2017, defendant was charged in another four-count indictment with the same crimes (two counts each) pertaining to two additional controlled-buy operations that occurred on July 20, 2017 and July 25, 2017.

A trial on the November 2016 indictment ended in a mistrial after the parties were unable to select a full jury. The People thereafter moved to consolidate the indictments for trial and County Court granted the motion. A jury trial ensued on the consolidated indictments. Following the close of the People's case-in-chief, County Court granted defendant's motion to dismiss the charges set forth in the July 2017 indictment, but otherwise denied defendant's motion as it pertained to the charges set forth in the November 2016 indictment. Defendant was convicted of counts 1 and 2 of the November 2016 indictment pertaining to the August 15, 2016 controlled-buy, but acquitted of counts 3 and 4 pertaining to the November 2, 2016 transaction. He was sentenced, as a second felony offender, to a prison term of six years followed by three years of postrelease supervision on each conviction, the sentences to run concurrently. Defendant appeals.

Defendant contends that the verdict is against the weight of the evidence because no witness actually observed him sell or possess narcotics. We disagree. " ‘A weight of the evidence review requires this Court to first determine whether, based on all the credible evidence, a different finding would not have been unreasonable. Where a different finding would not have been unreasonable, this Court must weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence’ " ( People v. Garrand, 189 A.D.3d 1763, 1764, 134 N.Y.S.3d 583 [2020], quoting People v. Stover, 178 A.D.3d 1138, 1139, 115 N.Y.S.3d 500 [2019], lv denied 34 N.Y.3d 1163, 120 N.Y.S.3d 249, 142 N.E.3d 1151 [2020] ). As relevant here, 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 it (see Penal Law § 220.16[1] ). A person is guilty of criminal sale of a controlled substance in the third degree when he or she knowingly and unlawfully sells said drug (see Penal Law § 220.39[1] ).

At trial, Brad Schaffer, a sergeant with the City of Gloversville Police Department, testified that he was involved in the August 15, 2016 controlled-buy operation. Schaffer met with a confidential informant (hereinafter CI No. 1) on that date, who agreed to cooperate in the operation in exchange for consideration in a pending criminal case regarding cocaine possession. CI No. 1 was fitted with a wire, provided with $50 and directed to place a phone call to defendant for the purpose of arranging the purchase of narcotics. A detective conducted a thorough search of CI No. 1's person and vehicle before she proceeded to the meet-up location, which yielded no illicit substances. The People entered into evidence the audio recording from CI No. 1's call to defendant prior to the buy, on which she stated that she was placing a call to "Shay" and he answered in the affirmative when she asked if $50 would be "okay" for the transaction. CI No. 1 then proceeded to drive to the original meet-up location, but received a phone call from defendant asking to switch locations and to meet at a Cumberland Farms in the City of Gloversville, Fulton County. Schaffer followed CI No. 1 to that location and parked across the street from the Cumberland Farms. Schaffer testified that, upon completing the transaction, CI No. 1 returned to his vehicle with a Styrofoam cup and advised that "the item [she] had purchased was inside of it." Upon looking inside of the cup, Schaffer saw "[o]ne single corner tie style bag" that contained a substance that was later identified as cocaine. Schaffer noted that CI No. 1 did not return with any of the money that he had provided to her for the transaction, and she was searched again thereafter.

The People also elicited testimony from Michal Calbet, a retired police detective, who confirmed that defendant was the subject of the August 2016 operation. Calbet, who parked across the street from the Cumberland Farms, used a camera with a telephoto lens to view the transaction, testifying that he saw CI No. 1 and defendant walk into the store together. Calbet also watched the surveillance video from the transaction, noting that, although it did not show defendant place anything into a cup, it showed him hand a coffee cup to CI No. 1, who then walked out of the store without paying for anything.

CI No. 1 also testified, confirming that she was thoroughly searched prior to the transaction and was given money for the purchase. She testified that, upon entering the Cumberland Farms with defendant, he went to the coffee section and then passed her a Styrofoam cup in exchange for money. She then exited the store, entered her vehicle, placed the coffee cup on the passenger seat, proceeded back to the designated meet-up spot and handed the cup to the detectives. On cross-examination, CI No. 1 acknowledged that she has struggled with an addiction to crack cocaine and that she had used crack "once or twice" while working for the police. However, she maintained that she was in rehab at the time of her testimony and was not currently using crack. The surveillance footage from the August 2016 Cumberland Farms transaction was also entered into evidence, which corroborated CI No. 1's testimony.

Although a different verdict would not have been unreasonable, when viewing the evidence in a neutral light and according deference to the jury's credibility determinations, we conclude that the verdict is not against the weight of the evidence (see People v. Small, 174 A.D.3d 1130, 1132, 105 N.Y.S.3d 211 [2019], lv denied 34 N.Y.3d 954, 110 N.Y.S.3d 630, 134 N.E.3d 629 [2019] ; People v. Morris, 165 A.D.3d 1489, 1490, 86 N.Y.S.3d 309 [2018], lv denied 32 N.Y.3d 1207, 99 N.Y.S.3d 195, 122 N.E.3d 1108 [2019] ; People v. Miller, 160 A.D.3d 1040, 1043, 75 N.Y.S.3d 112 [2018], lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 866, 109 N.E.3d 1166 [2018] ). The key dispute is whether defendant placed the cocaine in the cup that he handed to CI No. 1. Although no witness testified that defendant was observed doing so, the circumstantial evidence amply supports that inference. Although defendant contends that CI No. 1 was not credible given her admission to prior drug use and her agreement to participate in the operation to benefit her own criminal case, her credibility was "fully vetted" at trial and was consistent with testimony of law enforcement and the images captured on the surveillance video ( People v. Wilson, 100 A.D.3d 1045, 1046, 952 N.Y.S.2d 837 [2012], lv denied 22 N.Y.3d 998, 981 N.Y.S.2d 4, 3 N.E.3d 1172 [2013] ; see People v. Morris, 165 A.D.3d at 1490, 86 N.Y.S.3d 309 ; People v. Peterkin, 159 A.D.3d 1196, 1197, 72 N.Y.S.3d 646 [2018], lv denied 31 N.Y.3d 1151, 83 N.Y.S.3d 433, 108 N.E.3d 507 [2018] ).

We are also unpersuaded by defendant's contention that County Court abused its discretion in consolidating the indictments for trial. "When two or more indictments against the same defendant ... charge different offenses of a kind that are joinable in a single indictment pursuant to [ CPL 200.20(2) ], the court may, upon application of either the [P]eople or a defendant, order that such indictments be consolidated" ( CPL 200.20[4] ). Separate offenses are joinable under CPL 200.20(2)(c) when, "[e]ven though based upon different criminal transactions, ... such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law."

When offenses are joinable under that subsection, "determination of a consolidation application is discretionary, with the court weighing ‘the public interest in avoiding duplicative, lengthy and expensive trials against the defendant's interest in being protected from unfair disadvantage’ " ( People v. Martinez, 165 A.D.3d 1288, 1290, 86 N.Y.S.3d 143 [2018], quoting People v. Lane, 56 N.Y.2d 1, 8, 451 N.Y.S.2d 6, 436 N.E.2d 456 [1982] ; see CPL 200.20[5] ; People v. Piznarski, 113 A.D.3d 166, 180, 977 N.Y.S.2d 104 [2013], lv denied 23 N.Y.3d 1041, 993 N.Y.S.2d 255, 17 N.E.3d 510 [2014] ).

Here, the facts underlying both indictments were "separately presented, uncomplicated and easily segregable in the jury's mind [and t]here was no substantial difference in the quantum of proof at trial" ( People v. Jackson, 187 A.D.2d 869, 870, 590 N.Y.S.2d 556 [1992] [internal quotation marks, brackets and citation omitted]). In our view, County Court acted within its discretion by consolidating the indictments, and...

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