        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

972
KA 10-01385
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HANDY SLADE, DEFENDANT-APPELLANT.


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered March 25, 2010. The judgment
convicted defendant, upon a jury verdict, of criminal sale of a
controlled substance in the third degree, criminal possession of a
controlled substance in the third degree and criminally using drug
paraphernalia in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing those parts convicting
defendant of criminal possession of a controlled substance in the
third degree and criminally using drug paraphernalia in the second
degree and as modified the judgment is affirmed, and a new trial is
granted on counts two and three of the indictment.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of criminal sale of a controlled substance in the third
degree (Penal Law §§ 20.00, 220.39 [1]), criminal possession of a
controlled substance in the third degree (§§ 20.00, 220.16 [1]), and
criminally using drug paraphernalia in the second degree (§§ 20.00,
220.50 [2]), defendant contends that the evidence is legally
insufficient to establish his liability as an accessory or his
constructive possession of the drugs and drug paraphernalia.
Defendant failed to preserve that contention for our review inasmuch
as he failed to make a motion for a trial order of dismissal
specifically directed at those alleged insufficiencies (see People v
Beard, 100 AD3d 1508, 1509; People v Goodrum, 72 AD3d 1639, 1639, lv
denied 15 NY3d 773; see generally People v Gray, 86 NY2d 10, 19). In
any event, we conclude that defendant’s contention is without merit
inasmuch as there is a “valid line of reasoning and permissible
inferences which could lead a rational person to the conclusion
reached by the jury on the basis of the evidence at trial” (People v
Bleakley, 69 NY2d 490, 495).
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                                                         KA 10-01385

     “To establish an acting-in-concert theory in the context of a
drug sale, the People must prove not only that the defendant shared
the requisite mens rea for the underlying crime but also that
defendant, in furtherance of the crime, solicited, requested,
commanded, importuned or intentionally aided the principal in the
commission of the crime . . . Although the case law discussing these
criteria is somewhat fact-specific, integral to each inquiry is
whether a defendant exhibited any calculated or direct behavior that
purposefully affected or furthered the sale of the controlled
substance . . . The key to our analysis is whether a defendant
intentionally and directly assisted in achieving the ultimate goal of
the enterprise—the illegal sale of a narcotic drug” (People v Bello,
92 NY2d 523, 526; see People v Kaplan, 76 NY2d 140, 144-145). Here,
the evidence and the reasonable inferences drawn therefrom establish
that defendant intentionally and directly assisted another in the sale
of cocaine to an undercover officer by removing barricades on the door
to the residence to allow the officer to enter the apartment, standing
guard at the door during the officer’s transaction with the principal,
acting as a lookout during the sale by looking out the peephole of the
door to the residence, letting the officer out of the door and
securing that door upon the officer’s exit from the residence. We
conclude that such evidence, viewed in the light most favorable to the
prosecution (see People v Contes, 60 NY2d 620, 621), is legally
sufficient to establish defendant’s guilt as an accessory to the sale
of a controlled substance (see e.g. People v Eduardo, 44 AD3d 371,
372, affd 11 NY3d 484; People v Rivera, 250 AD2d 423, 423, lv denied
92 NY2d 904; People v Fuentes, 246 AD2d 474, 474, lv denied 91 NY2d
941; People v Lopez, 200 AD2d 525, 525, lv denied 83 NY2d 1005).
“Acting as a lookout is calculated behavior that furthers a drug sale
by ensuring that the sale is not interrupted and the buyer and seller
are not apprehended” (People v Mondon, 30 Misc 3d 1235 [A], 2011 NY
Slip Op 50369[U], * 2).

     We further conclude that, based on the evidence admitted at
trial, the evidence is legally sufficient to establish that defendant
had constructive possession of the drugs and drug paraphernalia found
in the residence. “ ‘Where, as here, defendant is not found in actual
possession of drugs [that] were not in plain view, the People must
establish his [or her] constructive possession . . . with proof
supporting the conclusion that he [or she] exercised dominion and
control over the [area where the drugs were found]’ ” (People v
Archie, 78 AD3d 1560, 1561, lv denied 16 NY3d 856; see generally
People v Manini, 79 NY2d 561, 573-574). Here, the evidence admitted
at trial established that defendant was a resident or occupant of the
apartment who had control of the premises, and the fact that large
quantities of narcotics and paraphernalia associated with narcotics
were found in the heating vents of the residence “permitted the
reasonable inference that defendant had both knowledge and possession
of the narcotics [and paraphernalia]” (People v Tirado, 47 AD2d 193,
195, affd 38 NY2d 955; see People v Diaz, 220 AD2d 260, 260-261; see
also People v Turner, 27 AD3d 962, 963).

     Viewing the evidence admitted at trial in light of the elements
of the crimes as charged to the jury (see People v Danielson, 9 NY3d
                                 -3-                           972
                                                         KA 10-01385

342, 349), we further conclude that the verdict is not against the
weight of the evidence (see generally Bleakley, 69 NY2d at 495).

     Although we have concluded that the conviction is based on
legally sufficient evidence and that the verdict is not against the
weight of the evidence, we agree with defendant that Supreme Court
erred in admitting in evidence an oral statement of defendant for
which no CPL 710.30 notice had been given. The statement at issue was
defendant’s response to a question about where he resided. The
statement was made while police officers were executing a search
warrant at the apartment and while defendant, who was wearing only a
pair of shorts, was handcuffed and lying on the floor. At that point,
one of the officers began to complete a prisoner data report. When
the officer asked defendant where he resided, defendant responded,
“here.”

     Generally, a defendant’s answer concerning his address, when
“elicited through routine administrative questioning that [is] not
designed to elicit an incriminating response” (People v Watts, 309
AD2d 628, 629, lv denied 1 NY3d 582; see generally People v Rodney, 85
NY2d 289, 292-293), will be considered pedigree information not
subject to CPL 710.30 notice requirements even if the statement later
proves to be inculpatory (see People v Perez, 198 AD2d 540, 542, lv
denied 82 NY2d 929). That is “[b]ecause responses to routine booking
questions—pedigree questions . . . —are not suppressible even when
obtained in violation of Miranda [and, therefore, a] defendant lacks a
constitutional basis upon which to challenge the voluntariness of his
[or her] statement” (Rodney, 85 NY2d at 293). “[W]here there is no
question of voluntariness, the People are not required to serve
defendant with notice” (id.).

     As the Court of Appeals recognized, however, “the People may not
rely on the pedigree exception if the questions, though facially
appropriate, are likely to elicit incriminating admissions because of
the circumstances of the particular case” (id.). Although the
question concerning defendant’s address appears to have been a
facially appropriate question, we conclude that, under the
circumstances of this case and, more specifically, under the
circumstances in which the question was asked, the question was likely
to elicit an incriminating admission and had a “necessary connection
to an essential element of [the possessory] crimes charged” under
Penal Law §§ 220.16 and 220.50 (2) (People v Velazquez, 33 AD3d 352,
354, lv denied 7 NY3d 929). We agree with defendant that the error in
admitting that statement cannot be considered harmless insofar as it
relates to the possessory counts of the indictment inasmuch as the
People relied heavily on that statement to establish defendant’s
constructive possession of the drugs and drug paraphernalia (cf.
People v Baker, 32 AD3d 245, 250, lv denied 7 NY3d 865). We therefore
modify the judgment by reversing those parts convicting defendant of
criminal possession of a controlled substance in the third degree and
criminally using drug paraphernalia in the second degree, and we grant
a new trial on those counts of the indictment (see People v Kims, 96
AD3d 1595, 1597, affd 24 NY3d 422). We reach a contrary conclusion
with respect to the sale count of the indictment and conclude that any
                                 -4-                           972
                                                         KA 10-01385

error in the admission of defendant’s statement was harmless with
respect to that count. The evidence in support of that count was
overwhelming and “there is no reasonable possibility that the
introduction of [defendant’s] statement[] at trial played a role in
the jury’s verdict” on that count (Baker, 32 AD3d at 250).

     Contrary to defendant’s final contention, insofar as it concerns
the criminal sale count, i.e., the sole count of the indictment for
which a new trial is not being ordered, the court did not err in
denying his request for a circumstantial evidence charge. “A
circumstantial evidence charge is required [only] where the evidence
against a defendant is ‘wholly circumstantial’ ” (People v Guidice, 83
NY2d 630, 636; see People v Daddona, 81 NY2d 990, 992; People v Smith,
90 AD3d 1565, 1566, lv denied 18 NY3d 998). Here, however,
“[d]efendant was not entitled to a circumstantial evidence charge
because the case did not rest entirely on circumstantial evidence”
(Lopez, 200 AD2d at 525). “ ‘Eyewitness testimony . . . established
that defendant engaged in acts which directly proved that at the very
least he acted as a lookout while the crime was being committed’ ”
(People v Jones, 306 AD2d 88, 88, lv denied 100 NY2d 583, quoting
People v Roldan, 88 NY2d 826, 827).




Entered:   November 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
