                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 29, 2015                   106751
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

DEAUNTTA MALLOY,
                    Appellant.
________________________________


Calendar Date:   November 14, 2014

Before:   Lahtinen, J.P., McCarthy, Egan Jr. and Devine, JJ.

                             __________


      Kindlon, Shanks & Associates, Albany (Terence L. Kindlon of
counsel), for appellant.

      P. David Soares, District Attorney, Albany (Steven M. Sharp
of counsel), for respondent.

                             __________


Devine, J.

      Appeal from a judgment of the County Court of Albany County
(Herrick, J.), rendered August 1, 2013, upon a verdict convicting
defendant of the crime of criminal possession of a controlled
substance in the fourth degree.

      Shortly after a detective observed defendant approach a
vehicle and engage in a hand-to-hand transaction with an
individual seated inside – which the detective believed was a
drug sale – and then enter a nearby residence, several police
officers executed a search warrant and entered the house. At
that point, defendant exited the rear of the house, threw a
plastic bag containing crack cocaine onto the ground and jumped
over a fence into a nearby vacant lot. Shortly thereafter,
                              -2-                106751

defendant emerged from a brushy area of the vacant lot and was
subsequently apprehended by a police detective who was involved
in the police operation.

      Defendant was charged by indictment with criminal
possession of a controlled substance in the third degree and
criminal possession of a controlled substance in the fourth
degree. Following a trial, the jury found defendant guilty of
criminal possession of a controlled substance in the fourth
degree and sentenced him, as a second felony offender, to five
years in prison followed by three years of postrelease
supervision. Defendant now appeals.

      Defendant asserts that County Court committed reversible
error by admitting redacted recordings of two phone calls that
indicate that defendant had been incarcerated pending trial.1
The People argued that the phone calls – in which defendant
states, among other things, that he was "at the wrong place at
the wrong time" when he was arrested – served to place defendant
at the house where the alleged crime occurred. County Court
provided the jury with a curative limiting instruction, but the
prejudicial effect of the evidence revealing defendant's
incarceration outweighed its limited probative value (compare
People v Jenkins, 88 NY2d 948, 950-951 [1996]). Nonetheless, we
conclude that County Court's improper admission of the phone call
evidence does not warrant a reversal in light of the overwhelming
evidence of defendant's guilt (see People v Guy, 93 AD3d 877,
880-881 [2012], lv denied 19 NY3d 961 [2012]; People v Moore, 148
AD2d 754, 755 [1989], lv denied 74 NY2d 667 [1989]). In
particular, trial evidence revealed that two detectives were
standing behind the house when they observed defendant run out of
a back door of the house toward a fence located at the rear of
the property. The officers testified that they were
approximately 20 to 30 feet from defendant at the time he


    1
        While defendant also challenges the admission of   the
audio recordings on the ground that they were inaudible,   as such
challenge was not raised before County Court, it has not   been
preserved for appellate review (see People v Forward, 46   AD3d
1222, 1223 [2007], lv denied 10 NY3d 811 [2008]).
                              -3-                106751

discarded the drugs. After one of the officers pursued defendant
on foot and called for assistance, a detective responded to the
call and saw defendant emerge from "the brush from the back of
[a] vacant lot . . . slowing down from a jog into a walk." After
defendant was apprehended, his identity was confirmed by the
officers that had observed him throwing the drugs to the ground.
Considering this evidence, we find that any error in admitting
the jailhouse phone calls was harmless.

      Moreover, we are not persuaded by defendant's argument that
County Court improperly permitted the People to introduce
testimony regarding an uncharged drug transaction in which
defendant was involved prior to his arrest. The detective's
testimony that he observed defendant approach a vehicle on the
street, lean into the vehicle and make "an exchange inside the
vehicle" mere minutes before he was arrested was "inextricably
interwoven with the charged crimes, relevant to defendant's state
of mind, and occurred so closely in time after the conduct for
which defendant was being tried that its probative value
outweighs any potential prejudice" (People v Din, 110 AD3d 1246,
1248 [2013], lv denied 22 NY3d 1137 [2014]; see People v
Buchanan, 95 AD3d 1433, 1436 [2012], lv denied 22 NY3d 1039
[2013]; People v Hernandez, 27 AD3d 229, 229 [2006], lv denied 7
NY3d 790 [2006]).

      Finally, we do not agree with defendant's claim that
various occurrences of prosecutorial misconduct deprived him of a
fair trial. Inasmuch as the severity and frequency of the
statements or other actions that defendant considered
inappropriate were limited in scope and largely addressed and
remedied by County Court, it cannot be said that defendant
sustained substantial prejudice that would require a new trial
(see People v Wright, 88 AD3d 1154, 1158 [2011], lv denied 18
NY3d 863 [2011]; People v Kirker, 21 AD3d 588, 589 [2005], lv
denied 5 NY3d 853 [2005]; People v McCombs, 18 AD3d 888, 890
[2005]).

     Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur.
                        -4-                  106751

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
