People v. Wilson

• Decision Date: 01 November 2012
• Citation: 2012 N.Y. Slip Op. 07233,100 A.D.3d 1045,952 N.Y.S.2d 837
• Parties: The PEOPLE of the State of New York, Respondent, v. Clide WILSON, Appellant.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 1045

952 N.Y.S.2d 837

2012 N.Y. Slip Op. 07233

The PEOPLE of the State of New York, Respondent,

v.Clide WILSON, Appellant.

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

Nov. 1, 2012.

Brent R. Stack, Valatie, for appellant.

Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, KAVANAGH, STEIN and EGAN JR., JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Greene County (Pulver Jr., J.), rendered April 5, 2011, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree (two counts) and criminal sale of a controlled substance in the third degree.

Defendant was indicted and charged with various drug crimes in connection with his sale of crack cocaine to a confidential informant (hereinafter CI) on two separate occasions in August 2009. Following a jury trial, defendant was convicted of criminal possession of a controlled substance in the third degree (two counts) and criminal sale of a controlled substance in the third degree and sentenced to an aggregate prison term of 18 years with four years of postrelease supervision. This appeal by defendant ensued.

Defendant initially contends that the verdict is not supported by legally sufficient evidence and, further, is against the weight of the evidence. We disagree. 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 the intent to sell it” (Penal Law § 220.16[1] ). Where, as here, the People proceed under the theory of constructive possession, the proof must establish “that defendant exercised dominion and control over the property or the person who actually possessed the drugs” ( People v. Miller, 13 A.D.3d 890, 891, 786 N.Y.S.2d 650 [2004];see People v. Buchanan, 95 A.D.3d 1433, 1433–1434, 944 N.Y.S.2d 378 [2012];People v. Arrington, 31 A.D.3d 801, 803, 817 N.Y.S.2d 755 [2006],lvs.denied7 N.Y.3d 865, 868, 824 N.Y.S.2d 610, 612, 857 N.E.2d 1141, 1143 [2006];People v. Leader, 27 A.D.3d 901, 903, 811 N.Y.S.2d 196 [2006] ). Similarly, a person is guilty of criminal sale of a controlled substance in the third degree when he or she “knowinglyand unlawfully sells ... a narcotic drug” (penal law § 220.39[1] ).

Here, the testimony offered by the CI (who had known defendant for a number of years), the undercover officers (who accompanied the CI on the dates in question and observed portions of the drug transactions) and the investigators (who provided the CI with buy money and strip searched him before and after the subject transactions to ensure that he was not concealing any drugs, currency or contraband), together with the audio recordings and the positive test results, establish that the verdict is supported by legally sufficient evidence and, further, is not against the weight of the evidence ( see People v. Heaney, 75 A.D.3d 836, 837, 906 N.Y.S.2d 350 [2010],lv. denied15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821 [2010];People v. Rolle, 72 A.D.3d 1393, 1396, 900 N.Y.S.2d 187 [2010],lv. denied16 N.Y.3d 745, 917 N.Y.S.2d 627, 942 N.E.2d 1052 [2011];People v. Chatham, 55 A.D.3d 1045, 1046, 865 N.Y.S.2d 402 [2008],lv. denied14 N.Y.3d 839, 901 N.Y.S.2d 145, 927 N.E.2d 566 [2010];People v. Thaddies, 50 A.D.3d 1249, 1250, 855 N.Y.S.2d 740 [2008],lv. denied10 N.Y.3d 965, 863 N.Y.S.2d 149, 893 N.E.2d 455 [2008];People v. Golden, 24 A.D.3d 806, 806–807, 804 N.Y.S.2d 496 [2005],lvs. denied6 N.Y.3d 812, 813, 812 N.Y.S.2d 451, 452, 845 N.E.2d 1282, 1283 [2006] ). Contrary to defendant's assertion, there is sufficient credible evidence in the record to establish that he exercised dominion and control over the location where the August 18, 2009 sale occurred. Additionally, with respect to the August 26, 2009 transaction, the CI's testimony is sufficient to demonstrate that defendant possessed crack cocaine with the intent to sell on that date. Although the CI was an admitted drug user and agreed to cooperate with the authorities in an effort to reduce certain outstanding criminal charges against him, his credibility was fully vetted at trial ( see infra ), and we cannot say that his testimony was “inherently incredible or improbable” ( People v. Heaney, 75 A.D.3d at 837, 906 N.Y.S.2d 350). Accordingly, according due deference to the jury's credibility determinations ( see People v. Rolle, 72 A.D.3d at 1396, 900 N.Y.S.2d 187;People v. Pearson, 69 A.D.3d 1226, 1228, 894 N.Y.S.2d 210 [2010],lv. denied15 N.Y.3d 755, 906 N.Y.S.2d 828, 933 N.E.2d 227 [2010] ), we discern no basis upon which to disturb the verdict.

To the extent that defendant contends that County Court improperly limited defense counsel's cross-examination of the CI, again we disagree. “[A]lthough a criminal defendant is guaranteed the right to confront all adverse witnesses through cross-examination, that right is not unlimited” ( People v. Francisco, 44 A.D.3d 870, 870, 843 N.Y.S.2d 439 [2007],lv. denied9 N.Y.3d 1033, 852 N.Y.S.2d 19, 881 N.E.2d 1206 [2008] [citations omitted] ). Indeed, the scope and extent of cross-examination is a matter committed to the trial court's sound discretion and, to that end, the court will be afforded “wide latitude to limit cross-examination on collateral matters designed to impeach ... credibility” ( People v. Love, 307 A.D.2d 528, 532, 762 N.Y.S.2d 162 [2003],lv. denied100 N.Y.2d 643, 769 N.Y.S.2d 209, 801 N.E.2d 430 [2003];see People v. Francisco, 44 A.D.3d at 870, 843 N.Y.S.2d 439;People v. Dickerson, 309 A.D.2d 966, 968, 766 N.Y.S.2d 138 [2003],lv. denied1 N.Y.3d 596, 776 N.Y.S.2d 228, 808 N.E.2d 364 [2004] ). Here, County Court permitted counsel to cross-examine the CI at length regarding his prior convictions, but limited the extent to which counsel could delve into the underlying facts of each conviction, reasoning that such minutia did not bear upon credibility and would serve only to confuse the jury. Based upon our review of the record as a whole, we find that County Court did not abuse its discretion in this regard.

Nor are we persuaded that County Court erred in denying defendant's motion for a mistrial based upon testimony elicited from Heath Wood regarding defendant's prior bad acts. Although “evidence of prior bad acts or uncharged crimes is inadmissible to prove the crime charged or to show a defendant's propensity to commit [a particular] crime, an exception to this rule exists where the evidence is admitted to show a defendant's intent, especially after the defendant has put his or her intent in issue” ( People v. Wright, 5 A.D.3d 873, 875, 773 N.Y.S.2d 486 [2004],lv. denied3 N.Y.3d 651, 782 N.Y.S.2d 422, 816 N.E.2d 212 [2004] [citation omitted]; see People v. Echavarria, 53 A.D.3d 859, 863, 861 N.Y.S.2d 510 [2008],lv. denied11 N.Y.3d 832, 868 N.Y.S.2d 606, 897 N.E.2d 1090 [2008] ), which is precisely what occurred here. Following circumspect questioning by the People on direct examination, defense counsel devoted the bulk of his cross-examination to attempting to portray Wood—at whose home the August 18, 2009 transaction occurred—as the true drug dealer. In response to that questioning, the People asked Wood on redirect, “Who was the drug dealer?” and “[W]hose drugs were ... sold?,” and Wood, in turn, identified defendant. As defendant's prior drug sales were probative of both his knowing possession and intent to sell ( see People v. Echavarria, 53 A.D.3d at 863, 861 N.Y.S.2d 510;People v. Wright, 5 A.D.3d at 875–876, 773 N.Y.S.2d 486), and as our review of the record reveals that the probative value of such evidence outweighed its prejudicial effect, County Court did not err in either admitting this testimony or denying defendant's subsequent motion for a mistrial.¹

Defendant next asserts that County Court committed various errors with respect to its charge to the jury. Again, we disagree. Although defendant requested a missing witness charge based upon the People's failure to call two witnesses to the August 26, 2009 transaction, in light of the testimony of the CI and relevant undercover officer, as well as the audio recording of that transaction, we cannot say that County Court abused its discretion in denying the requested charge, as such testimony plainly would have been cumulative ( see People v. Wilkins, 75 A.D.3d 847, 848–849, 904 N.Y.S.2d 820 [2010],lv. denied15 N.Y.3d 857, 909 N.Y.S.2d 34, 935 N.E.2d 826 [2010];People v. Darby, 72 A.D.3d 1280, 1282–1283, 897 N.Y.S.2d 795 [2010],lvs. denied15 N.Y.3d 747, 749, 754, 906 N.Y.S.2d 819, 821, 827, 933 N.E.2d 218, 220, 226 [2010] ). As for defendant's claim that reversal is warranted due to County Court's refusal to charge the jury that the CI and Wood were interested witnesses, we are of the view that the court's charge as a whole, particularly with respect to credibility, motive and benefit, was sufficient to adequately convey the need to scrutinize the testimony at issue ( see People v. Inniss, 83 N.Y.2d 653, 659, 612 N.Y.S.2d 360, 634 N.E.2d 961 [1994];People v. Kettreis, 19 A.D.3d 706, 707, 798 N.Y.S.2d 92 [2005],lv. denied5 N.Y.3d 807, 803 N.Y.S.2d 36, 836 N.E.2d 1159 [2005];cf. People v. Ballard, 38 A.D.3d 1001, 1003, 831 N.Y.S.2d 285 [2007],lv. denied9 N.Y.3d 840, 840 N.Y.S.2d 766, 872 N.E.2d 879 [2007] )—especially given the degree to which defense counsel “hammered at” ( People v. Inniss, 83 N.Y.2d at 659, 612 N.Y.S.2d 360, 634 N.E.2d 961) the credibility, bias and interest of...