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

99
KA 12-01592
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL J. BROWN, DEFENDANT-APPELLANT.


BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Monroe County Court (James J.
Piampiano, J.), rendered June 21, 2012. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a controlled
substance in the third degree, criminal possession of a controlled
substance in the fifth degree, and criminally using drug paraphernalia
in the second degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reducing the fine imposed on count
one of the indictment from $10,000 to $5,000, by vacating the fines
imposed on counts two through four of the indictment, by reducing the
mandatory surcharge from $600 to $300, by reducing the crime victim
assistance fee from $50 to $25, and by vacating the “additional $50
DNA” fee, and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of criminal possession of a controlled substance
in the third degree (Penal Law § 220.16 [1]), criminal possession of a
controlled substance in the fifth degree (§ 220.06 [5]), and two
counts of criminally using drug paraphernalia in the second degree
(§ 220.50 [2], [3]). Police investigators executing a search warrant
at defendant’s residence seized two small bags of cocaine, 39 rocks of
crack cocaine, a razor, a scale, and glassine envelopes. While
defendant was on the ground being handcuffed, he repeatedly stated,
“it’s for my personal use.” The investigators, however, found $160 in
small bills on defendant’s person and recovered no crack pipes or
other indicia of personal drug use from inside his residence.

     Defendant contends that County Court abused its discretion in
failing to preclude the testimony of an undercover officer as a
sanction for the People’s destruction of Rosario material, i.e., audio
recordings of two failed drug purchases. We reject that contention.
It is well settled that “nonwillful, negligent loss or destruction of
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                                                         KA 12-01592

Rosario material does not mandate a sanction unless the defendant
establishes prejudice” (People v Martinez, 22 NY3d 551, 567; see
People v Lee, 116 AD3d 493, 496, lv denied 23 NY3d 1064). If
prejudice is shown, as it was here, the proper sanction for
eliminating that prejudice is left to the sound discretion of the
trial court, which may consider the degree of prosecutorial fault (see
Martinez, 22 NY3d at 567; People v Olson, 126 AD3d 1139, 1141, lv
denied 25 NY3d 1169). Under the circumstances of this case, where
there was testimony that the audio recordings were destroyed as part
of a routine police practice, we conclude that the court did not abuse
its discretion in refusing to preclude the undercover officer’s
testimony and instead imposing the lesser sanction of an adverse
inference charge (see Olson, 126 AD3d at 1141; see generally People v
Durant, 26 NY3d 341, 347). Defendant further contends that the
adverse inference charge was erroneous as given, but he failed to
preserve his contention for our review (see People v Castillo, 34 AD3d
221, 222, lv denied 8 NY3d 879), and we decline to exercise our power
to review that contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]).

     To the extent that defendant contends that the court erred under
People v Molineux (168 NY 264) in allowing the undercover officer’s
testimony, we reject his contention inasmuch as the evidence was
probative of his intent to sell (see People v Ray, 63 AD3d 1705, 1706,
lv denied 13 NY3d 838). To the extent that defendant contends that
the audio recordings were Brady material, we reject his contention
because he failed to demonstrate a reasonable possibility that the
audio recordings would have changed the outcome of the proceedings
(see People v Gayden [appeal No. 2], 111 AD3d 1388, 1389).

     Contrary to defendant’s further contention, we conclude that the
court properly refused to charge the lesser included offense of
criminal possession of a controlled substance in the seventh degree
(Penal Law § 220.03). The physical evidence recovered from
defendant’s residence bore all the hallmarks of the drug trade. Thus,
there was no reasonable view of the evidence from which the jury could
have concluded that defendant was guilty of simple possession but not
the more serious charges (see People v Townsend, 138 AD3d 1506, 1507;
People v Bond, 239 AD2d 785, 786, lv denied 90 NY2d 891).

     Defendant contends that he was denied effective assistance of
counsel because counsel moved to suppress, rather than to preclude,
statements not contained in the CPL 710.30 notice. We reject that
contention. “[I]t is well settled that disagreement over trial
strategy is not a basis for a determination of ineffective assistance
of counsel” (People v Jarvis, 113 AD3d 1058, 1059, affd 25 NY3d 968
[internal quotation marks omitted]), and we cannot say that counsel’s
decision to proceed with a motion to suppress deprived defendant of
effective assistance of counsel (see People v Borthwick, 51 AD3d 1211,
1215-1216, lv denied 11 NY3d 734). Viewing the evidence, the law, and
the circumstances of this particular case in totality at the time of
the representation, we conclude that defense counsel provided
defendant with meaningful representation (see generally People v
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                                                         KA 12-01592

Baldi, 54 NY2d 137, 147).

     We agree with defendant that the court abused its discretion in
ruling that the People could impeach him using his prior drug-related
convictions and their underlying facts. In determining whether the
People may impeach a defendant using prior criminal acts, a court must
balance the probative value of the evidence on the issue of
credibility against the risk of undue prejudice, as measured by the
potential impact of the evidence and the possibility that its
introduction would deter defendant from testifying in his or her
defense (see People v Sandoval, 34 NY2d 371, 376-377). Certain
factors should be considered, such as the prior conviction’s temporal
proximity, the degree to which the prior conviction bears upon the
defendant’s truthfulness, and the extent to which the prior conviction
may be taken as evidence of the defendant’s propensity to commit the
crime charged (see id.). It is well recognized that “ ‘in the
prosecution of drug charges, interrogation as to prior narcotics
convictions . . . may present a special risk of impermissible
prejudice because of the widely accepted belief that persons
previously convicted of narcotics offenses are likely to be habitual
offenders’ ” (People v Smith, 18 NY3d 588, 593-594, quoting Sandoval,
34 NY2d at 377-378). Here, the record reveals that the court
considered only the temporal proximity of the prior convictions and
defendant’s willingness to place his interests above those of society
in general (see People v Williams, 56 NY2d 236, 239-240; People v
Arnold, 298 AD2d 895, 896, lv denied 99 NY2d 580). There is no
indication that the court considered the special risk that defendant’s
prior drug-related convictions might be taken by the jury as evidence
of his propensity to commit the crime charged. Nevertheless, we
conclude that the error is harmless in light of the overwhelming
evidence of defendant’s guilt and the lack of any significant
probability that the jury would have acquitted him had it not been for
the error (see generally People v Crimmins, 36 NY2d 230, 241-242).

     We further agree with defendant that the court made multiple
errors in imposing fines and assessing fees and surcharges, and we
modify the judgment accordingly. The court erred in imposing a fine
in excess of $5,000 upon defendant’s conviction of count one of the
indictment, criminal possession of a controlled substance in the third
degree (Penal Law § 220.16 [1]). In imposing a fine under Penal Law
§ 80.00 (1) (c) (iii), the court was required to consider “the profit
gained by defendant’s conduct, whether the amount of the fine is
disproportionate to the conduct in which defendant engaged, its impact
on any victims, and defendant’s economic circumstances, including the
defendant’s ability to pay, the effect of the fine upon his or her
immediate family or any other persons to whom the defendant owes an
obligation of support” (§ 80.00 [1] [c]). There is no indication in
the record that the court considered those factors, and so we reduce
the fine imposed on count one to the $5,000 statutory maximum for
felony convictions (see § 80.00 [1] [a]). Furthermore, we conclude
that the fines are illegal to the extent that the court imposed a fine
on both a conviction of criminal possession of a controlled substance
in the third degree and criminal possession of a controlled substance
in the fifth degree that “arose from a single act” (People v Regatuso,
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                                                         KA 12-01592

140 AD3d 1750, 1751; see § 80.15), and we therefore vacate the fine
imposed under count two of the indictment. The fine imposed with
respect to count two must be vacated for another reason, along with
the fines for counts three and four. More particularly, the court
erred in imposing unauthorized “concurrent” fines upon defendant’s
conviction with respect to those counts. The statute does not
authorize concurrent fines (see § 80.00 et seq.). In other words, if
the sentencing court imposes multiple fines, those fines necessarily
aggregate. Here, however, the court imposed “concurrent” fines and
ordered that such fines were “not an additional amount” to the fine
imposed on count one. We thus conclude that the fines imposed on
counts two, three, and four were not authorized by the statute, and we
therefore vacate them. In addition, the court erroneously assessed
multiple mandatory surcharges, crime victim assistance fees, and DNA
databank fees on crimes committed through a single act (see § 60.35
[2]; People v Anderson, 254 AD2d 701, 702, lv denied 92 NY2d 980).
Otherwise, defendant’s sentence is not unduly harsh and severe.




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
