People v. Wynn

• Decision Date: 13 April 2017
• Citation: 52 N.Y.S.3d 136,149 A.D.3d 1252
• Parties: The PEOPLE of the State of New York, Respondent, v. Kris M. WYNN, Also Known as Kaye, Also Known as Beloved, Appellant.
• Court: New York Supreme Court — Appellate Division

149 A.D.3d 1252

52 N.Y.S.3d 136

The PEOPLE of the State of New York, Respondent,

v.Kris M. WYNN, Also Known as Kaye, Also Known as Beloved, Appellant.

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

April 13, 2017.

Mark Diamond, Albany, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel), for respondent.

Before: EGAN JR., J.P., LYNCH, ROSE, CLARK and MULVEY, JJ.

MULVEY, J.

Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered April 17, 2014, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (three counts).

Following two controlled buys of drugs (cocaine and heroin) from defendant by two different confidential informants (hereinafter CI), defendant was apprehended after a traffic stop by a state trooper on Interstate 87 (hereinafter I–87) in the Town of Plattsburgh, Clinton County. After a canine sniff indicated drugs in the vehicle, a search warrant for defendant's person was obtained. When the warrant was executed at the Plattsburgh police station, defendant produced 109 packets of heroin from his pants. Defendant was thereafter indicted on three counts of criminal possession of a controlled substance in the third degree and two counts of criminal sale of a controlled substance in the third degree. Defendant's motion to suppress the physical evidence obtained as a result of the search was denied by County Court. Following a jury trial, defendant was convicted as charged and sentenced to an aggregate prison term of 16 years, together with four years of postrelease supervision. Defendant appeals.

Defendant contends that County Court erred in finding that the police had probable cause to arrest him following the traffic stop on I–87. Testimony at the Mapp hearing established that the police obtained a warrant to attach a GPS device to defendant's vehicle following the two controlled buys. A CI then reported that defendant would be returning to Clinton County from Schenectady County with drugs. Police monitored the GPS transmission and waited at various points on I–87. Defendant's vehicle, operated by a friend, was observed traveling in excess of the speed limit and changing lanes without signaling and was then stopped by the police. Defendant occupied the front passenger seat, and a canine sniff indicated the presence of drugs in that area. Defendant was taken into custody and transported to the Plattsburgh police station while the police obtained a search warrant. Shortly after the search warrant was delivered to the police station, defendant produced, from his pants, a bag containing the packets of heroin. Defendant testified at the Mapp hearing that the vehicle was not speeding and that the driver had properly signaled before returning to the right-hand lane. County Court found the police testimony to be credible and held that the totality of the information known to the police at the time of the traffic stop provided reasonable suspicion that defendant was carrying drugs. We agree.

First, we note that "[f]actual determinations of the suppression court are entitled to great weight and will not be overturned unless clearly contrary to the evidence, taking into consideration the court's credibility determinations" (People v. Weishaupt, 118 A.D.3d 1100, 1102, 987 N.Y.S.2d 493 [2014] [internal quotation marks and citations omitted] ). Here, the state trooper had probable cause to believe that the driver had committed two traffic violations and he was therefore authorized to stop the vehicle on that basis, regardless of any other underlying motivation (see People v. Robinson, 97 N.Y.2d 341, 349, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001] ). Notwithstanding the traffic violations, the wealth of information arising from the controlled buys, the court-authorized GPS monitoring of defendant's vehicle and the validated tip from one of the CIs regarding defendant's purposeful travels that day, all established probable cause to detain defendant (see People v. Wolfe, 103 A.D.3d 1031, 1034, 962 N.Y.S.2d 403 [2013], lv. denied 21 N.Y.3d 1021, 21 N.Y.3d 1021, 994 N.E.2d 399 [2013] ). Further, the canine alert compounded the suspicion of narcotics possession and provided additional justification for defendant's detention (see People v. Devone, 57 A.D.3d 1240, 1243, 870 N.Y.S.2d 513 [2008], affd. 15 N.Y.3d 106, 905 N.Y.S.2d 101, 931 N.E.2d 70 [2010] ).

Next, we note that defendant's challenge to the legal sufficiency of the evidence was not preserved for our review as he made only a general motion to dismiss the entire indictment at the close of the People's case (see People v. Thorpe, 141 A.D.3d 927, 928, 35 N.Y.S.3d 769 [2016], lv. denied 28 N.Y.3d 1031, 45 N.Y.S.3d 383, 68 N.E.3d 112 [2016] ; People v. Thiel, 134 A.D.3d 1237, 1237–1238, 21 N.Y.S.3d 745 [2015], lv. denied 27 N.Y.3d 1156, 39 N.Y.S.3d 389, 62 N.E.3d 129 [2016] ). With regard to defendant's further contention that the verdict was against the weight of the evidence, we are first required "to determine whether an acquittal would not have been unreasonable [and][i]f so, [we] must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions" (People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Here, an acquittal would not have been unreasonable if the jury had determined not to credit the testimony of the CIs. However, with regard to the two controlled buys, we reject defendant's contention that either or both of the CIs were insufficiently reliable. Although both CIs had criminal backgrounds, histories of drug abuse and received favorable treatment from the People for their cooperation, the record shows that both were fully cross- examined at trial. Defendant has failed to demonstrate that their testimony was " inherently incredible or improbable" (People v. Heaney, 75 A.D.3d 836, 837, 906 N.Y.S.2d 350 [2010], lv. denied 15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821 [2010] ). Abundant evidence established that the two drug transactions were closely monitored by police and that the substances purchased were narcotics. Defendant's argument at trial with regard to the credibility of the police officers who witnessed his production of the heroin from his pants at the police station was rejected by the jury, and he has furnished no reason for this Court to disturb that finding. Consequently, we find that the jury's verdict on all of the charges is in accord with the weight of the evidence.

As for defendant's challenges to County Court's evidentiary rulings during the trial, we discern no abuse of discretion (see People v. Carroll, 95 N.Y.2d 375, 385, 718 N.Y.S.2d 10, 740 N.E.2d 1084 [2000] ; People v. Aska, 91 N.Y.2d 979, 981, 674 N.Y.S.2d 271, 697 N.E.2d 172 [1998] ). Detective Chris Maggy's testimony that State Trooper Matthew Ross told him that the canine "alerted positively" during the traffic stop was properly admitted for the nonhearsay purpose of providing background information for Maggy's actions (see People v. Jackson, 100 A.D.3d 1258, 1261, 954 N.Y.S.2d 679 [2012], lv. denied 21 N.Y.3d 1005, 971 N.Y.S.2d 256, 993 N.E.2d 1279 [2013] ). Further, a lab technician's statement that another scientist had not found any discrepancies when her test results were reviewed was not hearsay because that fact was included in admissible business records (see CPLR 4518[a] ). Finally, defendant's objection with respect to the chain of custody proof offered by the People merely goes to its weight, not admissibility (see People v. Shoga, 89 A.D.3d 1225, 1226, 933 N.Y.S.2d 126 [2011], lv. denied 18 N.Y.3d 886, 939 N.Y.S.2d 756, 963 N.E.2d 133 [2012] ).

We also reject defendant's contention that the prosecutor's comments during summation deprived him of a fair trial. Reversal based on prosecutorial misconduct during summation "is warranted only if the misconduct is such that the defendant suffered substantial prejudice, resulting in a denial of due process" (People v. Forbes, 111 A.D.3d 1154, 1160, 975 N.Y.S.2d 490 [2013] [internal quotation marks, brackets and citations omitted] ). That determination "hinges upon ‘the severity and frequency of the conduct, whether the trial court took appropriate action to dilute the effect of the conduct and whether, from a review of the evidence, it can be said that the result would have been the same absent such conduct’ ...