                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 23, 2015                     105521
________________________________

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

ANDRE HAWKINS,
                    Appellant.
________________________________


Calendar Date:   June 5, 2015

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

                             __________


     Alexander W. Bloomstein, Hillsdale, for appellant.

      D. Holley Carnright, District Attorney, Kingston (Joey
Drillings of counsel), for respondent.

                             __________


Egan Jr., J.

      Appeal from a judgment of the County Court of Ulster County
(Williams, J.), rendered July 27, 2012, 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 (two
counts).

      In April 2011, as the result of an investigation by the
Ulster Regional Gang Enforcement Narcotics Team (hereinafter
URGENT), defendant was indicted and charged with two counts of
criminal sale of a controlled substance in the third degree and
two counts of criminal possession of a controlled substance in
the third degree. The charges stemmed from two separate and
targeted buys in April 2010, wherein defendant sold narcotics to
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an undercover officer assigned to URGENT and working in
conjunction with a confidential informant (hereinafter CI).
Although a warrant for defendant's arrest was issued in April
2011, he was not apprehended until he turned himself in to
authorities in October 2011. Following defendant's arraignment,
defense counsel moved to dismiss the indictment upon statutory
speedy trial grounds, contending, among other things, that the
People failed to exercise due diligence in locating defendant. A
hearing ensued, at the conclusion of which County Court found
that the People had satisfied their due diligence obligation; as
a result, the 200 days that elapsed between the filing of the
indictment in April 2011 and the People's statement of readiness
in October 2011 were not chargeable to the People, and
defendant's speedy trial motion was denied.

      The matter proceeded to trial, at which time both the
undercover officer and defendant, among others, appeared and
testified as to the underlying drug transactions. Defendant was
convicted as charged and thereafter was sentenced, as a second
felony offender, to concurrent prison terms of 10 years followed
by three years of postrelease supervision. This appeal by
defendant ensued.

      We affirm. Initially, we find no merit to defendant's
claim that County Court erred in denying his speedy trial motion.
Inasmuch as defendant was charged with felony offenses, the
People were required to be ready for trial within six months (see
CPL 30.30 [1] [a]). "In computing the time within which the
People must be ready for trial, the court must exclude 'the
period of delay resulting from the absence or unavailability of
the defendant'" (People v Devore, 65 AD3d 695, 696 [2009],
quoting CPL 30.30 [4] [c] [i]). For purposes of the statute, and
insofar as is relevant here, "[a] defendant must be considered
absent whenever his [or her] location is unknown and . . . [such]
location cannot be determined by due diligence" (CPL 30.30 [4]
[c] [i]; see People v Devino, 110 AD3d 1146, 1148 [2013]). "The
determination of whether the People have exercised due diligence
in locating a person is a mixed question of law and fact" (People
v Grey, 259 AD2d 246, 248 [1999], lv denied 94 NY2d 880 [2000]
[citation omitted]), and "[w]hile minimal attempts to locate a
defendant and secure his [or her] presence in court will not
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satisfy the due diligence standard, the police are not obliged to
search for a defendant indefinitely as long as they exhaust all
reasonable investigative leads as to his [or her] whereabouts"
(People v Delaronde, 201 AD2d 846, 847-848 [1994]; accord People
v Petrianni, 24 AD3d 1224, 1224 [2005]; see People v Devino, 110
AD3d at 1148-1149).

      Here, there is no dispute that 200 days elapsed between the
filing of the indictment in April 2011 and the People's
declaration of readiness in October 2011, and the record makes
clear that defendant's whereabouts were unknown to law
enforcement officials during this time period. Hence, the issue
distills to whether the People exercised due diligence in
attempting to locate defendant. In this regard, a detective with
the City of Kingston Police Department in Ulster County who, in
turn, was assigned to URGENT, testified that, immediately after
the warrant for defendant's arrest was issued, he reached out to
the CI who had participated in the underlying drug transactions
in an effort to obtain an address or phone number for defendant.
When that effort proved to be unsuccessful, the detective ran
defendant's criminal history report and obtained a former address
for defendant in the City of Schenectady, Schenectady County.
Within one week of the issuance of the arrest warrant, the
detective contacted the City of Schenectady Police Department and
asked that they check the address in question.

      When a check of the Schenectady County address failed to
locate defendant, the detective entered defendant's arrest
warrant into the New York State Police Information Network
database in May 2011, a nationwide database of active arrest
warrants. The detective further testified that, in July 2011, a
fellow URGENT member ran a "comprehensive report" through another
law enforcement database in an effort to obtain a list of
defendant's last known addresses. Based upon the results of this
search and information obtained from another informant,1 the
detective obtained an address for defendant in the City of


     1
        Throughout this time period, the detective also reached
out to other informants in an effort to ascertain defendant's
whereabouts.
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Poughkeepsie, Dutchess County and again requested that local law
enforcement check the location provided. When that effort
failed, the detective reached out to a fellow URGENT member who,
in September 2011, put him in touch with the United States
Marshals Service in the City of Albany. In October 2011, the
Marshals Service was able to locate and contact defendant's
"significant other," who relayed a message to defendant. Shortly
thereafter, defendant turned himself in to the authorities.

      In light of the foregoing efforts, it cannot be said that
"the authorities shirked their continuing obligation of due
diligence" (People v Marrin, 187 AD2d 284, 286 [1992], lv denied
81 NY2d 843 [1993]; accord People v Petrianni, 24 AD3d at 1225).
Although defendant averred that he was "living openly" and
receiving mail at a particular address during the relevant time
period and faults the People and law enforcement for failing to
check his Social Security number against the records of various
governmental agencies, counsel conceded at oral argument that
defendant's name was not on the lease for the premises, and the
record is devoid of proof that defendant registered that address
with any entity, including the United States Postal Service, the
Department of Motor Vehicles, the Department of Labor and/or
state and federal taxing authorities (compare People v Devino,
110 AD3d at 1149; People v Devore, 65 AD3d at 697). Under these
circumstances, we are satisfied that the People discharged their
due diligence obligation – even if "greater efforts could have
been undertaken" (People v Grey, 259 AD2d at 249). Accordingly,
defendant was not deprived of his statutory right to a speedy
trial.

      Nor are we persuaded that County Court erred in permitting
the People to amend the indictment. CPL 200.70 (1) provides, in
relevant part, that "[a]t any time before or during trial, the
court may, upon application of the [P]eople and with notice to
the defendant and opportunity to be heard, order the amendment of
an indictment with respect to defects, errors or variances from
the proof relating to matters of form, time, place, names of
persons and the like, when such an amendment does not change the
theory or theories of the prosecution as reflected in the
evidence before the grand jury which filed such indictment, or
otherwise tend to prejudice the defendant on the merits." Here,
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during the course of jury selection, County Court granted the
People's oral motion to amend the indictment to reflect that
defendant sold (count 3) and/or possessed (count 4) cocaine as
opposed to heroin. The subject amendment did not alter the
People's theory of the case but, rather, appears to have been
required simply to correct a clerical error in the indictment.
Additionally, we discern no prejudice to defendant as a result of
the amendment. Notably, the People's pretrial discovery
response, as well as the grand jury minutes, reflected that the
substance forming the basis for the charges outlined in counts 3
and 4 of the indictment was cocaine. Under these circumstances,
County Court did not err in permitting the amendment (see People
v Bausano, 122 AD3d 1341, 1341 [2014], lv denied 25 NY3d 1069
[2015]; People v Monday, 309 AD2d 977, 980 [2003]; People v
Pacheco, 280 AD2d 685, 686 [2001], lv denied 96 NY2d 905 [2001];
see also People v Hall, 125 AD3d 1095, 1096 [2015]; People v
Cruz, 61 AD3d 1111, 1112 [2009]).

      Although defendant's challenge to the legal sufficiency of
the evidence has not been preserved for our review, "our weight
of the evidence analysis necessarily involves an evaluation of
whether all elements of the charged crimes were proven beyond a
reasonable doubt at trial" (People v Pine, 126 AD3d 1112, 1114
[2015] [internal quotation marks, brackets and citations
omitted]; see People v Colburn, 123 AD3d 1292, 1292 n [2014], lv
denied 25 NY3d 950 [2015]). Insofar as is relevant here, "[a]
person is guilty of criminal sale of a controlled substance in
the third degree when he [or she] knowingly and unlawfully sells
. . . a narcotic drug" (Penal Law § 220.39 [1]), and "[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" (Penal Law § 220.16
[1]). The crux of defendant's argument on appeal is that it is
"impossible" to discern – from the audio/video recordings of the
two transactions – whether the drugs at issue were sold by
defendant or the CI. Defendant's argument on this point,
however, ignores the fact that there was a third person present
for the transactions at issue – namely, the undercover officer
who actually purchased the drugs and positively identified
defendant as the seller.
                              -6-                105521

      The record reflects that arrangements were made through the
CI for the undercover officer to make a controlled drug purchase
from defendant at the Kingston Plaza parking lot in Kingston.
The undercover officer, who had been shown a photograph of
defendant and was equipped with a body wire, drove to the
appointed location in an unmarked vehicle and waited for the CI
and defendant to arrive. After a car driven by the CI pulled up
next to the undercover officer's vehicle, the undercover officer
exited and entered the back seat of the CI's car. Following a
brief conversation, the front-seat passenger – a black male that
the undercover officer later positively identified as defendant –
handed the undercover officer 10 glassine envelopes of a
substance that subsequently tested positive for heroin in
exchange for $120 in prerecorded buy money. The undercover
officer then indicated to defendant and the CI that, if they were
going to be around, she might have additional funds to purchase
more drugs – specifically, crack cocaine. After exiting the CI's
vehicle, the undercover officer returned to a predetermined
location and turned over the heroin that she had purchased from
defendant.

      Within minutes, a phone call was placed to the CI and a
second controlled buy was arranged. The undercover officer,
still wearing a body wire, returned to the shopping plaza and
awaited the arrival of the CI and defendant. As with the
previous transaction, the undercover officer exited her vehicle
and entered the back seat of the CI's vehicle, at which point
defendant handed the undercover officer four small, clear plastic
"twists" of a substance later determined to be crack cocaine in
exchange for $80 in prerecorded buy money. The undercover
officer again returned to a predetermined location, relinquished
the drugs in question and, as with the prior transaction,
positively identified defendant as the individual from whom she
had purchased the drugs. Both transactions were recorded by
members of URGENT, and audio/video recordings of these
transactions were entered into evidence at trial.

      Although defendant readily admitted to being present for
the subject sales, he insisted that the actual drug transactions
occurred between the CI and the undercover officer. This
conflicting testimony, however, presented a credibility issue for
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the jury to resolve (see People v Toye, 107 AD3d 1149, 1151
[2013], lv denied 22 NY3d 1091 [2014]). Accordingly, "[w]hile a
different verdict would not have been unreasonable, viewing the
evidence in a neutral light and giving due deference to the
jury's credibility determinations, we cannot say that the jury
failed to accord the evidence the weight that it deserved"
(People v Pine, 126 AD3d at 1115-1116; see People v Richards, 124
AD3d 1146, 1146-1147 [2015], lv denied 25 NY3d 992 [2015]).

      Finally, defendant contends that he was denied the
effective assistance of counsel – a claim that is premised, in
large measure, upon counsel's decision to question defendant on
direct examination regarding his prior criminal history, which
ultimately resulted in counsel eliciting information beyond the
scope of County Court's prior – and favorable – Sandoval ruling.
"To succeed on an ineffective assistance claim, a defendant must
prove that trial counsel failed to provide meaningful
representation. . . . In addition, even if a defendant shows that
the lawyer erred, a defendant must further demonstrate the
absence of strategic or other legitimate explanations for the
error" (People v Baker, 14 NY3d 266, 270-271 [2010] [internal
quotation marks and citations omitted]; see People v Wheeler, 124
AD3d 1136, 1138-1139 [2015], lv denied 25 NY3d 993 [2015]).

      Based upon our review of the record as a whole, we are
satisfied that defendant received meaningful representation.
Trial counsel engaged in appropriate pretrial motion practice,
including filing a motion to dismiss the indictment upon
statutory speedy trial grounds, made cogent opening and closing
statements, strongly cross-examined the People's witnesses,
registered appropriate objections and arguments throughout the
course of the trial and advanced a plausible defense – namely,
that it was the CI, who died prior to trial, who actually sold
the drugs to the undercover officer on the day in question.
Consistent with that theory, defense counsel elicited testimony
regarding the CI's criminal background, the fact that the CI was
paid for his services in connection with the underlying
transactions and that, contrary to routine procedures, he was not
searched for contraband prior to the controlled purchases at
issue.
                              -8-                  105521

      Although defense counsel indeed questioned defendant
regarding his prior criminal history, thereby admittedly opening
the door for further exploration by the People on this point, the
record makes clear that this was an intentional, tactical
decision on the part of counsel. Specifically, counsel's
strategy was designed to show that, while defendant did have a
prior history of drug use and drug-related convictions,
defendant, who last sold drugs in 1992 and last used drugs in
1998, was a recovering addict who no longer sold drugs to support
his habit. Upon reviewing both the colloquy between defense
counsel and County Court and counsel's summation, it is apparent
that counsel was endeavoring to portray defendant as a man who
had seen the error of his ways (at least as far as drugs were
concerned) and, hence, it was far more likely that it was the CI
– and not defendant – who had sold the drugs to the undercover
officer. Even assuming that this strategy was – upon further
reflection – ill advised, "a simple, hindsight disagreement with
trial tactics or strategy is insufficient to establish a lack of
meaningful representation" (People v Underdue, 89 AD3d 1132, 1134
[2011], lv denied 19 NY3d 969 [2012]). Defendant's remaining
contentions, including his assertion that the sentence imposed is
harsh and excessive, have been examined and found to be lacking
in merit.

     McCarthy, J.P., Lynch and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
