                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: July 10, 2014                       104877
________________________________

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

SHEDRET WHITEHEAD,
                    Appellant.
________________________________


Calendar Date:   May 28, 2014

Before:   Peters, P.J., Lahtinen, Garry, Rose and Devine, JJ.

                               __________


     Bruce Evans Knoll, Albany, for appellant.

      James R. Farrell, District Attorney, Monticello (Meagan K.
Galligan of counsel), for respondent.

                               __________


Lahtinen, J.

      Appeal from a judgment of the County Court of Sullivan
County (LaBuda, J.), rendered January 24, 2012, convicting
defendant following a nonjury trial of the crimes of criminal
possession of a controlled substance in the third degree (two
counts), tampering with physical evidence, resisting arrest and
driving while ability impaired by drugs, and of the traffic
infraction of failing to display lighted head lamps.

      On March 1, 2011 at about 2:35 a.m., two state troopers
initiated a traffic stop after observing a car driven by
defendant with its lights off while on State Route 42 in the Town
of Thompson, Sullivan County. Defendant was described as acting
"jittery" and "excited" with "glassy, bloodshot and dilated"
eyes, and the troopers reportedly saw a portion of a plastic bag
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with a powdery substance protruding from defendant's partially
unzipped pants. He was ordered out of the car where he attempted
to reach for the unzipped area of his pants ignoring directives
to stop. A struggle ensued during which defendant threw the bag
toward an overpass. It fell just short of the overpass, where it
was retrieved and found to contain smaller bags all with cocaine.
Defendant was arrested and taken to the police station where a
field sobriety test was administered and, after Miranda warnings,
he admitted using cocaine earlier in the night. A paramedic
failed in his efforts to draw defendant's blood at the station
and, despite warnings about a refusal, defendant refused to be
taken to a hospital for a blood test. Defendant was indicted for
criminal possession of a controlled substance in the third degree
(two counts), tampering with physical evidence, resisting arrest,
driving while ability impaired by drugs and the violation of
inadequate head lamps. He was found guilty of all counts
following a nonjury trial and sentenced, as a second felony
offender, to an aggregate prison term of 10 years followed by
three years of postrelease supervision. Defendant appeals.

      Defendant initially argues that the integrity of the grand
jury proceeding was impaired by evidentiary errors including
hearsay and improper opinion proof. This issue was not preserved
for our review by a motion to dismiss the indictment upon such
ground (see People v Fancher, 267 AD2d 770, 771 [1999], lv denied
94 NY2d 919 [2000]; People v Boyer, 216 AD2d 795, 796 [1995], lv
denied 86 NY2d 840 [1995]). In any event, the argument is
unavailing in that there was ample proper evidence before the
grand jury to sustain the indictment and the errors asserted are
insufficient to require the exceptional remedy of dismissal of
the indictment (see People v Miller, 110 AD3d 1150, 1150-1151
[2013]; People v Farley, 107 AD3d 1295, 1295 [2013], lv denied 21
NY3d 1073 [2013]).

      Although defendant failed to preserve his contention
regarding the legal sufficiency of the evidence, he also advances
a weight of the evidence argument and "our weight of the evidence
review necessarily involves an evaluation of whether all elements
of the charged crime[s] were proven beyond a reasonable doubt at
trial" (People v Gaudiosi, 110 AD3d 1347, 1348 [2013], lv denied
22 NY3d 1040 [2013] [internal quotation marks and citations
                              -3-                104877

omitted]; see People v Mann, 63 AD3d 1372, 1373 [2009], lv denied
13 NY3d 861 [2009]). The People presented proof that defendant
was observed by the troopers driving without lights in the middle
of the night. After stopping him, a bag containing a white
powdery substance was openly visible to the troopers. When
defendant was asked to exit the car, he got into a physical
altercation with the troopers and attempted to throw the bag over
an overpass. Defendant refused to stop fighting despite being
directed to do so and after being told he was under arrest. He
continued to fight until pepper spray was used. He failed at
least one field sobriety test and acknowledged that he had
ingested cocaine. The bag that he threw was quickly retrieved,
it contained over one-half ounce of cocaine – both powder and
crack – which was packaged in four separate bags, as would be
used for sales. He had a large sum of cash with him. He
testified and offered a different version on some events, but
County Court found in its written decision the testimony of the
police to be credible. Upon weighing and considering the proof
in a neutral light, while deferring to the factfinder's
credibility determination, we are unpersuaded that the verdict is
against the weight of the evidence (see People v Harvey, 96 AD3d
1098, 1100 [2012], lv denied 20 NY3d 933 [2012]; People v Vargas,
72 AD3d 1114, 1118-1119 [2010], lv denied 15 NY3d 758 [2010]).

      We agree with defendant that, during a portion of the
trial, he was improperly permitted to remain in shackles and also
that one statement he made to a police investigator should have
been suppressed. However, such errors were harmless under the
circumstances given the quantum and nature of the proof of
defendant's guilt, as well as there being no reasonable
possibility that these errors affected the factfinder's verdict
(see People v Grant, 45 NY2d 366, 378-379 [1978]). Even in a
nonjury trial, a defendant should not remain restrained in the
courtroom unless the trial court sets forth particularized
reasons for such restraint on the record (see People v Best, 19
NY3d 739, 743-744 [2012]), which was not done here. Further,
review of the suppression hearing reveals that, after giving many
admissible and Mirandized statements to police, defendant
eventually invoked his right to remain silent, which required
that questioning stop (see People v Ferro, 63 NY2d 316, 322
[1984], cert denied 472 US 1007 [1985]); nonetheless shortly
                              -4-                  104877

thereafter a police investigator asked defendant why his zipper
had been open in the car, prompting the response that he had
urinated prior to being stopped. In light of the overwhelming
proof of defendant's guilt and the absence of any indication that
either of these matters impacted the court's verdict, the errors
were harmless.

      The "refusal to take a chemical test may be evidenced by
words or conduct" (People v Richburg, 287 AD2d 790, 792 [2001],
lv denied 97 NY2d 687 [2001]), and County Court did not err in
admitting evidence regarding defendant's refusal to permit his
blood to be drawn based upon proof at the suppression hearing
that his conduct thwarted the efforts to draw his blood. We note
that the proof at trial regarding defendant's refusal was less
compelling; however, in its written decision, County Court set
forth other proof upon which it relied regarding such count, and
there is no indication that it inferred a consciousness of guilt
from defendant's purported refusal (see People v Anderson, 89
AD3d 1161, 1162 [2011]).

      Review of the record reveals that defendant received
meaningful representation and, accordingly, we are unpersuaded by
his ineffective assistance of counsel argument (see People v
Henry, 95 NY2d 563, 565 [2000]). The remaining contentions have
been considered and are unavailing.

     Peters, P.J., Garry, Rose and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
