People v. Magee , 23 N.Y.S.3d 468 ( 2016 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: January 21, 2016                   106597
    ________________________________
    THE PEOPLE OF THE STATE OF
    NEW YORK,
    Respondent,
    v                                     MEMORANDUM AND ORDER
    MAURICE MAGEE,
    Appellant.
    ________________________________
    Calendar Date:   November 24, 2015
    Before:   Garry, J.P., Rose, Lynch, Devine and Clark, JJ.
    __________
    Brian M. Quinn, Albany, for appellant.
    Kathleen B. Hogan, District Attorney, Lake George (Matthew
    D. Burin of counsel), for respondent.
    __________
    Lynch, J.
    Appeal from a judgment of the County Court of Warren County
    (Hall Jr., J.), rendered January 8, 2014, upon a verdict
    convicting defendant of the crime of criminal sale of a
    controlled substance in the second degree.
    Defendant and Gerald Colombe were charged in an indictment
    with criminal sale of a controlled substance in the second
    degree, attempted criminal sale of a controlled substance in the
    second degree and conspiracy in the second degree after an
    incident in May 2013 during which Colombe offered to sell cocaine
    to Anthony Bruno, an undercover investigator with the Warren
    County Sheriff's Office, in the parking lot of a Walmart.
    Colombe pleaded guilty, absconded and was returned to Warren
    County in time to testify against defendant at the end of the
    -2-                106597
    trial. The jury found defendant guilty of criminal sale of a
    controlled substance in the second degree.1 He was thereafter
    sentenced, as a second felony drug offender, to a prison term of
    12 years, with five years of postrelease supervision. Defendant
    appeals.
    Defendant first maintains that his conviction was not
    supported by legally sufficient evidence establishing that he
    "knowingly and unlawfully" participated in Colombe's offer to
    sell the cocaine to Bruno (Penal Law § 220.41 [1]; see Penal Law
    § 220.00 [1]). "A conviction is legally insufficient where,
    viewing the record in the light most favorable to the
    prosecution, there is no valid line of reasoning and permissible
    inferences from which a rational jury could have found the
    elements of the crime proved beyond a reasonable doubt" (People v
    Maldonado, 24 NY3d 48, 53 [2014] [internal quotation marks and
    citations omitted]). It is established that "[a] conviction for
    criminal sale does not require that an actual sale be
    consummated; under Penal Law § 220.00 (1), a 'sale' includes an
    offer to sell or exchange drugs. However, in order to support a
    conviction under an offering for sale theory, there must be
    evidence of a bona fide offer to sell – i.e., that defendant had
    both intent and the ability to proceed with the sale" (People v
    Mike, 92 NY2d 996, 998 [1998] [citations omitted]; see People v
    Samuels, 99 NY2d 20, 23-24 [2002]; People v Vargas, 72 AD3d 1114,
    1117 [2010], lv denied 15 NY3d 758 [2010]; People v Crampton, 45
    AD3d 1180, 1181 [2007], lv denied 10 NY3d 861 [2008]). Intent
    necessarily is determined by a defendant's statements and conduct
    (see People v Samuels, 99 NY2d at 24). Also pertinent here is
    that "[a] defendant may not be convicted of any offense upon the
    testimony of an accomplice unsupported by corroborative evidence
    tending to connect the defendant with the commission of such
    offense" (CPL 60.22 [1]).
    1
    While defendant moved prior to opening statements to
    dismiss the conspiracy count as jurisdictionally defective,
    County Court did not grant the motion until just prior to
    Colombe's testimony, on consent of the People.
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    The event was partially captured through audio and video
    recording devices utilized by Bruno, who prearranged the sale
    with Colombe, as well as footage from Walmart's security cameras.
    After parking his vehicle, Bruno walked to defendant's nearby
    car, opened the rear passenger door and sat in the back seat.
    Colombe was in the front passenger seat and defendant was behind
    the wheel. A conversation ensued between Colombe and Bruno, as
    Bruno handed $1,050 in cash to Colombe. Simultaneously,
    defendant began to drive the car toward the Walmart entrance.
    Colombe counted the money out loud and appeared to try to hand
    the money to defendant, who simply continued to drive without
    speaking. Moments later, defendant stopped the car, got out and
    entered the store. Shortly thereafter, defendant returned to the
    car, tapped the window and walked back into the store followed by
    Colombe. At this point, Bruno communicated to the backup
    officers that he recognized defendant and suspected that his
    cover was blown. Colombe returned to the car, opened the front
    passenger door, peered in and directly asked Bruno whether he was
    a police officer. At this point, defendant remained in the
    entranceway looking out towards his car. After a brief exchange,
    Colombe instructed Bruno to walk back to his own car where they
    would complete the transaction. Moments after defendant got back
    in the car, Bruno got out. As Bruno approached his own car,
    Colombe was walking away, having placed the $1,050 under the
    windshield. Colombe and defendant then sped away in defendant's
    car and were eventually apprehended by the pursuing officers.
    Two baggies of cocaine were found along the roadway and a witness
    testified that he saw the passenger throw two white objects out
    of the window as the vehicle sped by. Forensics established that
    the bags contained 17 grams of cocaine.
    Colombe testified that he contacted defendant to supply the
    cocaine for the sale to Bruno. He explained that the money would
    go to defendant, and that his take was to receive seven grams of
    cocaine from defendant. Asserting that defendant would not trust
    him with handling the cocaine, Colombe utilized defendant's cell
    phone to call Bruno and change the plan by having Bruno come into
    defendant's car. Colombe testified that he counted the money out
    loud for defendant's sake and, upon confirming that Bruno paid
    the required amount, stated, "Maurice it's a wrap." When asked
    to explain his actions in the video, Colombe stated that he said
    -4-                106597
    "here" and that he "tried to hand [defendant] the money."
    Colombe further explained that he did not know why defendant did
    not take the money, or why he left the car. Colombe testified
    that when he exited the car in response to defendant's tap on the
    window, defendant advised him that Bruno was a police officer and
    told Colombe to get Bruno out of the car and put the money on
    Bruno's windshield. During what Colombe described as a "high
    speed chase," he stated that defendant took the cocaine out of
    his pocket and told Colombe to throw it out the passenger window.
    Colombe complied.
    For his part, Bruno testified that the sale was prearranged
    with Colombe and that, shortly before they were to meet, Colombe
    called on defendant's cell phone to instruct Bruno to get in the
    back seat of defendant's car. Bruno explained that right after
    he handed the money to Colombe, he made eye contact with
    defendant through the rearview mirror and recognized defendant
    from prior dealings. Bruno testified that after the money was
    counted, he heard Colombe ask defendant "if he was basically
    trying to get away from the cameras," to which defendant
    responded "yeah, just a minute . . . I will be right back."
    Bruno testified that when defendant returned to the car, Colombe
    said, before exiting, that "he is going to hand it to me. He
    doesn't know you."
    Without question, Colombe fully implicated defendant as the
    moving force behind this transaction. The further question is
    whether there is corroborating evidence to show that defendant
    acted with the intent to pursue the sale. Clearly, defendant was
    present in the car with Colombe when Bruno entered the back seat.
    Colombe also used defendant's cell phone to change the
    transaction format shortly before Bruno arrived. Since the
    record shows that Colombe did not have either a car or a phone, a
    jury could readily infer that defendant drove Colombe to the
    meeting place and allowed Colombe to use his phone (compare
    People v Lanza, 57 NY2d 807 [1982]). That said, there is no
    evidence that defendant was involved in the preliminary
    conversations between Colombe and Bruno setting up the sale. Nor
    did defendant in any way interact with Bruno or Colombe while in
    the car during the money exchange. The video actually shows that
    defendant immediately began to drive after Bruno entered the car
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    and neither touched the money nor uttered a single word related
    to the transaction. Defendant exited the car within a minute,
    but his reasons for doing so may readily be explained by Bruno's
    testimony that they made eye contact and knew each other. Given
    this sequence, a jury could also readily infer that defendant
    informed Colombe that Bruno was a police officer based on
    defendant's own actions in waiting back and observing Colombe
    return to the car and Colombe's direct confrontation with Bruno
    as to whether he was a police officer. Not to be overlooked is
    that defendant drove Colombe back to the initial meeting area,
    waited for Colombe to place the money on Bruno's windshield and
    then took off at a high rate of speed.
    Viewing this evidence in a light most favorable to the
    People, we find that a jury could validly conclude that defendant
    intended to proceed with the sale and only terminated the sale
    after recognizing Bruno. We therefore find that the evidence was
    legally sufficient to prove the element of intent (compare People
    v Samuels, 99 NY2d at 23-24; People v Mike, 92 NY2d at 998;
    People v Vargas, 72 AD3d at 1117; People v Crampton, 45 AD3d at
    1181). Moreover, viewing this proof in a neutral light and
    according deference to the credibility determinations of the
    jury, we do not find the verdict was against the weight of the
    evidence (see People v Reome, 15 NY3d 188, 191-192 [2010]; People
    v Cruz, 131 AD3d 724, 725 [2015]). The jury was aware of the
    favorable plea agreement that Colombe negotiated, that he
    admittedly used drugs prior to the transaction and of his
    criminal background, and it could utilize its collective judgment
    to assess his credibility (see People v Nicholas, 130 AD3d 1314,
    1315 [2015]; People v Richards, 124 AD3d 1146, 1147 [2015], lv
    denied 25 NY3d 992 [2015]; People v Wingo, 103 AD3d 1036, 1037
    [2013], lv denied 21 NY3d 1021 [2013]).
    We further reject defendant's contention that his cell
    phone was illegally searched and seized based on a delayed
    warrant. Generally, police must obtain a warrant before
    searching the contents of a cell phone seized from an individual
    who has been arrested (see Riley v California, ___ US ___, ___,
    
    134 S Ct 2473
    , 2493-2494 [2014]). Here, the People procured a
    search warrant on September 24, 2013, allowing full access to
    defendant's cell phone and data pertinent to the use of the phone
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    during the commission of the underlying crime. At the time the
    warrant was signed, the cell phone was being held as part of
    defendant's personal property at the Warren County Correctional
    Facility. In our view, the warrant sufficiently narrowed the
    search (see United States v Ganias, 755 F3d 125, 134-135 [2d Cir
    2014], rearg en banc granted 791 F3d 290 [2015]; United States v
    Galpin, 720 F3d 436, 445-446 [2d Cir 2013]). While the warrant
    was issued four months after defendant's arrest, the delay did
    not render the search unreasonable (see United States v Christie,
    717 F3d 1156, 1162-1163 [10th Cir 2013]; United States v Stabile,
    633 F3d 219, 235-236 [3d Cir 2011], cert denied ___ US ___, 
    132 S Ct 399
     [2011]). In any event, while the entire media content of
    the cell phone was admitted into evidence, only a few text
    messages relating to defendant's financial condition were
    actually presented to the jury. There is no indication in this
    record that any of the potentially inflammatory images and videos
    included on the disc containing the phone content were shown to
    the jury.
    We do, however, find merit to defendant's claim that he was
    deprived of a fair trial due to the erroneous admission of
    evidence indicative of prior illegal behavior. The focus here is
    on the testimony of defendant's acquaintance, Taylor Aubin, who
    described a trip she took with defendant to New York City in
    April 2013. They arrived at about 11:30 p.m. and met a person
    named Ty and his girlfriend on a sidewalk. After a brief
    conversation, the four drove in defendant's car to a nearby
    building. Defendant then had Aubin count $6,000 in cash, which
    he handed over to Ty. Ty went into a building and returned to
    the car about 45 minutes later. Ty then drove the group to his
    house, where defendant and Aubin stayed for a brief period and
    then left to return home, arriving at about 6:00 a.m. Aubin also
    testified how defendant later complained that Ty was bothering
    him to repay a debt, that he was not working and that he needed
    money to pay a lawyer. She also loaned defendant $670 and was
    repaid $600.
    The stated purpose of this testimony was to demonstrate
    that defendant had a financial motive for the cocaine sale to
    Bruno. Evidence of prior bad acts or uncharged crimes may be
    admissible to show motive to commit a crime under one of the
    -7-                  106597
    traditional Molineux exceptions – where the probative value
    exceeds its prejudicial effect (see People v Molineux, 168 NY
    264, 293 [1901]). That said, "there is usually no issue of
    motive in a drug sale case, as the seller's motivation is nearly
    always financial gain" (People v Wilkinson, 71 AD3d 249, 255
    [2010]; see generally People v Alvino, 71 NY2d 233, 242-243
    [1987]). Moreover, "evidence of similar uncharged crimes has
    probative value, but as a general rule it is excluded for policy
    reasons because it may induce the jury to base a finding of guilt
    on collateral matters or to convict a defendant because of his
    [or her] past" (People v Alvino, 71 NY2d at 241; see People v
    Nicholas, 130 AD3d 1314, 1316 [2015]). The Aubin story is highly
    suggestive of an illicit drug transaction, and it is difficult to
    discern any relevant impact other than to show defendant's
    criminal propensity. As this case largely turned on Colombe's
    credibility, we cannot characterize the error in admitting this
    evidence as harmless, notwithstanding County Court's curative
    instruction (see People v Gray, 125 AD3d 1107, 1109 [2015];
    People v Allen, 13 AD3d 892, 894 [2004], lv denied 4 NY3d 883
    [2005]). Accordingly, we must reverse defendant's judgment of
    conviction and remit for a new trial. Given this outcome,
    defendant's remaining contentions have been rendered academic.
    Garry, J.P., Rose, Devine and Clark, JJ., concur.
    ORDERED that the judgment is reversed, on the law, and
    matter remitted to the County Court of Warren County for a new
    trial.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 106597

Citation Numbers: 135 A.D.3d 1176, 23 N.Y.S.3d 468

Filed Date: 1/21/2016

Precedential Status: Precedential

Modified Date: 1/12/2023