The People, Respondent,v.Julio Peguero-Sanchez, Appellant.BriefN.Y.March 21, 2017SUPRE:rviE COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTl\llENT To Be Argued by: Lauren Tan Time Requested: 10 minutes --------------------------------------------------------------------)( THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JULIO PEGUERO-SANCHEZ, AD2d Case No. 2014-02568 Suffolk County Ind. No. 2891-2011 Defendant-Appellant. -------------------------------------------------------------------)( LAUREN TAN Assistant District Attorney Of Counsel BRIEF OF RESPONDENT THOMAS J. SPOT A District Attorney of Suffolk County Criminal Courts Building 200 Center Drive Riverhead, New York 11901 (631) 852-2500 TABLE OF CONTENTS Page Preliminary Statement ....................................................................................... 1 Statement ofFacts .......................................................... .............. ....... .... .......... 2 Dunaway/Mapp Hearing ................................ ......... ................ 2 The People's Case ..................................................... 6 The Defense Case . ........ ......................... ... ........... .... 15 The People's Rebuttal ............................................... 21 The Verdict ........................................................... 21 The Sentence ................. .......... ......... .. .. . ........... .... 22 Point I .................................................................................... 23 Officer Janickey had probable cause to detain appellant based on the two traffic infractions Officer J anickey had observed while he was on patrol [addressing Appellant's Point II] Point II ............................. . .......... ........... ......... ......................... 25 The trial court properly curtailed trial counsel's cross- examination of Officer Janickey to prevent the jury from receiving misleading information that it was legal to operate a passenger type vehicle with no rearview mirror [addressing Appellant's Points I and V] Point III ........................................................................... . ....... 28 Because of the overwhelming evidence of appellant's guilt it was harmless error for the prosecutor to inadvertently elicit testimony from Detective Rivera that appellant had invoked his right to counsel [addressing Appellant's Point ill] Point IV ........... ......................................................................... 31 Appellant received a fair trial and any unconceded errors deriving from the text messages and from the prosecutor's remarks at summation would be harmless in light of the overwhelming evidence of appellant's guilt [addressing Appellant's Point IV] Point V ....................................................................................... 42 The sentence imposed was legal, commensurate with the gravity of the crimes, and should not be modified [addressing Appellant's Point IV claim for sentence modification, at Appellant's Brief, pg. 48] Conclusion ........... .......................... . ......................................... 44 Certificate Of Compliance With 22 N.Y.C.R.R. 670.10.3(a)(3) ................... .45 SUPREJvffi COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPART:rvrENT ---------------------------------------------------------------------)( Respondent, -against- JULIO PEGUERO-SANCHEZ, Defendant-Appellant. -------------------------------------------------------------------)( Preliminary Statement AD2D Case No. 2014-02568 Suffolk County Ind. No. 2891-2011 Julio Peguero-Sanchez appeals from a judgment of the Supreme Court, Suffolk County (Condon, J.), dated February 25, 2014, after he was convicted at a jury trial of criminal possession of a controlled substance in the first degree [PL §220.21(1), operating a motor vehicle with no rearview mirror [VTL §375(10)(a)], and having defective license plate light [VTL §375( 4)]. Appellant was sentenced to 10 years incarceration with 5 years of post-release supervision on the A felony and time-served on the traffic infractions. There was no co-defendant associated with this case. Statement of Facts Dunaway/Mapp Hearing On March 5, 2013, appellant appeared with counsel in the Supreme Court of Suffolk County (Condon, J.) for the purpose of a Dunaway/lvfapp hearing (H.1). 1 Suffolk County Police Officer Thomas Janickey testified that on November 10, 2011, he worked a 5:00p.m. to 1:00 a.m. tour (H.8). He was assigned to the peace out unit, where he investigated street crimes involving guns, narcotics and gangs (H.8-9). At approximately 6:59 p.m., Officer Janickey was patrolling 600A Wellwood Avenue, Lindenhurst, in Suffolk County, New York (H.9-11). It was a large shopping center that contained several stores, including an Applebee's (H.9- 11). Officer Janickey specifically patrolled the Applebee's parking lot because there had been several community complaints of drug dealings in that location (H.ll ). It was a known drug location where Officer J anickey and fellow officers had made prior drug arrests (H.ll). Although it was dark outside, the parking lot was fairly well lit (H.11 ). The parking lot was illuminated by lights from 1 Numbers in parentheses preceded by "H" refer to the transcript of the hearing proceedings in the Supreme Court, Suffolk County (Condon, J.), on March 5, 2013. 2 numerous storefronts and at least 3 0 lamp posts that were scattered in the parking lot (H2.5-6). 2 Officer Janickey drove alone in an unmarked Crown Victoria and wore plain clothes with a tactical police vest (H.9, 26-27). The vest was black with white letters that spelled the word "police" on the upper right chest area and on the back of the vest (H.l 0, 33). Officer Janickey also wore his badge around his neck (H.55). Officer Janickey was driving at approximately 5 to 10 miles per hour when he observed a Hispanic male in a 1995 BMW, with the engine running, parked in one of the stalls (H.ll, 25- 6). The front of the BMW faced northbound, which was another parking lot, and the passenger door faced Applebee's (H.23). The Officer was directly behind the BMW and observed that the parking lights on the BMW were on, but the license plate light was not illuminated (H.l2, 26; H2.8, 26). The area where appellant parked his car was well lit (H2.6). Officer Janickey continued with his patrol onto the next row of parking stalls (H.l2, 28).3 At this point, Officer Janickey was directly in front of the BMW and noticed that the vehicle did not have a rear-view mirror (H.l2, 28; H2.27).4 Officer 2 Numbers in parentheses preceded by "H2" refer to the transcript of the hearing proceedings in the Supreme Court, Suffolk County (Condon, J.), on July 9, 2013. 3 On cross-examination, pictures of the parking lot were introduced into evidence as Defense A- F (H.38). 4 On cross-examination, a copy of the traffic ticket for VTL §375 (lO)(a) was introduced into evidence as Defense G (I-!.37-38). 3 Janickey made eye contact with appellant, who was seated in the driver's side of the BMW (H.l3, 31). Upon making eye contact, appellant appeared to immediately throw his seat back in an attempt to lay low in the vehicle (H.13, 31- 32). Appellant's action raised Officer Janickey's suspicion level (H.34; H2.28).5 Officer Janickey parked his vehicle directly in front of the appellant's vehicle (H.14 ). However, appellant was not blocked from leaving the parking stall because he could back his car out (H.20-21). Officer Janickey did not activate his ·overhead lights and there were no other officer at the scene (H.20). Officer Janickey approached the BMW from the driver's side (I-1.14). He was approximately two feet from appellant and was standing between the driver and rear passenger door (H.16). 6 He asked appellant what he was doing in the area and appellant stated he was going into Applebee's (H.14, 34). He then asked appellant if he was there by himself (H.38). Appellant stated that he was meeting up with some friends (H.38). Officer Janickey asked appellant to produce his driver's license (H.14, 44; H2.1 2). At this time, Officer Janickey leaned toward the driver-side window, his head was below the roof line of appellant's car, and he 5 On cross-examination, Officer Janickey testified that when he approached appellant's car, he did not plan to issue appellant traffic summons (H.34). Officer Janickey's intent was just to ask appellant what he was doing at that location (H.34 ). 6 A black and white xerox copy of a photograph depicting appellant's car from the driver' s side was admitted into evidence as People's 1 (H2.11). Officer Janickey placed an X on the xerox copy indicating where he was standing when he spoke with appellant (H2.11 -12). The X was placed right next to where the driver's side door would open. 4 was within a foot of appellant (H2.12-13). Officer Janickey was able to peer into the driver's-side window (I-!2.12). Appellant turned on the interior lights in his car and retrieved his license from the center console/cup area (H.l4, 45; H2.12). Once appellant turned on the interior car lights, Officer J anickey immediately saw an open black plastic bag located between appellant's feet- his legs were approximately 8 inches apart (I-1.16-17, 45-46, 48-49; I-12.12, 35, 36). The black plastic bag laid flat against the floor, open, and on top of the bag were several clear sealed plastic sandwich plastic bags containing a condensed white power substance that were rock-like and fist size (I-1.16-17, 50-51; H2.12, 14-15,35, 39-40, 45, 47).7 Officer Janickey asked appellant to step out of the vehicle; appellant then attempted to walk into Applebee's (H.17). Officer Janickey instructed appellant to come back and place his hands on the back of the vehicle (I-!.17). Appellant was then handcuffed, placed under arrest, and secured by another officer who arrived at the scene (H.17; I-12.50). Officer Janickey then retrieved the black plastic bag with the clear bags of hard white substance (H.18). He also observed that to the left of the black plastic bag was a brown lunch bag (I-1.18, 51). Officer Janickey retrieved the brown ltmch bag and found that it contained several clear plastic bags with 7 On cross-examination, the black plastic bag was admitted into evidence as Defense H (H2.37, 41-42). The brown paper bag was admitted into evidence as Defense I (H2.40-42). The clear plastic bags containing hard white powdery substance were admitted into evidence as Defense J (H2.45). 5 hard white substance as well (H.l 8).8 Based on Officer Janickey's experience and training in identifying narcotics, he believed the hard white substances contained both in the black plastic bag and in brown lunch bag were cocaine (H.l9). The Court's Decision On July 17, 2013 , the court issued a Decision and Order denying appellant's motion to suppress the contraband that was retrieved from appellant's vehicle. The court found Officer J anickey to be credible. Based on the facts adduced at the hearing, the court held that Officer Janickey properly "asked for the defendant's license and registration." Further, "the officer, familiar with the drug trade, recognized the white power as cocaine. This gave the police the right to seize the cocaine and arrest the defendant, under the plain view doctrine." The court further held that the "intrusion into the defendant's freedom was minimal and authorized." The People's Case at Trial Suffolk County Police Officer Thomas Janickey worked for the New York City Police Department for three years prior to his employment with the Suffolk County Police Department (Tl.602-03).9 He had been employed by the Suffolk 8 On cross-examination, Officer Janickey testified he did not take any photographs of the bags prior to removing them from appellant's car (H.47). A black and white xerox copy of a photograph depicting Officer Janickey's vantage point from where he was standing while looking into the driver's side of appellant's vehcle was admitted into evidence as People's 2 (H2.11). Officer Janickey placed an X on the xerox copy indicating where he had observed the black plastic bag and X-2 for the brown paper bag (H2.14 ). 9 The letter "Tl" followed by a page number refers to the January 14, 2014, trial transcript. 6 County Police Department for 13 years (T1.603). 10 Officer Janickey had experience with street level narcotics trafficking, surveillance on drug transactions, and execution of search warrants involving homes and cars from which narcotics were sold (T1.603-04). He was also familiar with how street-level narcotics are packaged (T1.604). He had made approximately 350 to 500 car stops involving narcotics possession and several hundred arrests involving cocaine (Tl.605). He was familiar with the prices that narcotics were being sold for, specifically cocaine (T1.605). He confirmed that a kilogram of cocaine could be sold for anywhere between $30,000 to $35,000 (T1.605). On November 10, 2011, Officer Janickey was assigned to the Patrol Special Operations Team ("PSOT") and worked a tour of 5:00p.m. to 1:00 a.m. (Tl.606- 07). Members of the PSOT focused mainly on narcotics and gun trafficking investigations (T1.607). However, members of the PSOT could still make arrests for crimes not relating to narcotics, drugs or gang activity, and they could issue traffic tickets for vehicle and traffic violations (T2.830). 11 On the incident date, Officer J anickey was by himself patrolling the Lindenhurst area in an unmarked Crown Victoria (Tl.606). The Crown Victoria 10 On cross-examination, Officer Janickey affirmed that he aspired to become a detective (Tl.673). He confirmed that in Suffolk County there were no tests one could take to become a detective (T1.675). He also confirmed that a promotion to detective status would be based on "cases you make" (Tl.675). Officer Janickey acknowledged that a class A felony would be the most serious criminal offense that could be charged and appellant committed a class A felony (T1.674). 11 The letter "T2" followed by a page number refers to the January 15,2014, trial transcript. 7 was equipped with lights and sirens (Tl.606). 12 There were emergency lights on the dashboard on the front and back windshields (T 1. 724 ). The lights were approximately eight inches long and visible to motorists (Tl.724). The car had a computer data base with a lit up screen (Tl.606). It also had a radio device on the roof of the car (T1.606). Officer Janickey wore jeans and a sweatshirt (Tl.607). He wore a tactical vest on top of the sweatshirt (Tl.607). The tactical vest was black with the word "Police" in big white lettering on the back and smaller white lettering on the right shoulder (Tl.607, 726). The vest had holders for a police radio, flashlight and a Taser (Tl.607). Underneath the vest was his under armor (Tl.607). At approximately 7:00p.m., Officer Janickey was patrolling the parking lot m a shopping center located at 600A Wellwood Avenue, Town of Babylon, County of Suffolk and State of New York (T1.607 -08). 13 There were numerous stores inside this shopping center, including Applebee's, Rite Aid, King Kullen and a Sears appliance store (Tl.622). The parking lot was well lit (Tl.647) There was at least one large 30-foot-high pole, with numerous bright lights from the side in each row of parking stalls (T1.647). 12 It also had tires, steering wheel, and seatbelts. 13 A photograph depicting the Applebee's parking lot was admitted into evidence as People's 1 (Tl.609-ll). 8 While Officer Janickey was driving down one column of parking stalls-- there were two rows to a column--he observed a 1995 BM\V in one of the parking stalls, approximately 40 yards from the entrance to the Applebees's (T1.626, 676). 14 The headlights were off while the parking lights were on but there was no light illuminating the license plate (Tl.626, 676, 730). 15 There were unoccupied parking stalls between the BMW and Applebee's (T1.627). Officer Janickey continued driving and looped around to patrol the second row of parking stalls (T1.627, 677). While he was driving, Officer Janickey came upon the same BMW, but this time it was from the front (T1.627-28). Officer Janickey was approximately 10 feet away from appellant's car when he observed that the front windshield did not have a rearview mirror (T1 .628, 689). 16 Appellant was seated in the driver's side ofthe BMW (T l.629, 675). 17 Officer Janickey and appellant made eye contact with each other and appellant appeared to immediately 14 On cross-examination, Officer Janickey confirmed that appellant's vehicle was in a legal parking position (Tl.675). 5 On cross-examination, Officer Janickey affmned that he only testified about appellant's parking lights at the July 9, 2013, hearing (Tl.730-31). 16 Photographs taken of appellant's car from the side, back, and front were admitted into evidence as People's 2, 3, and 4, respectively (Tl.612-15). Two photographs taken of the back seats of appellant's car were admitted into evidence as People's 5 and 6 (T1.616). People's 5 and 6 showed a rearview mirror located in the rear seat pocket (Tl.660-61). A picture taken of the front windshield of appellant's car was admitted into evidence as People's 7 (Tl.619-20). People's 7 showed no rearview mirror attached to the car. On cross-examination, Officer Janickey affirmed that the interior of appellant's car was dark and he did not have any lights shining on appellant's vehicle when he first saw the car with no rearview mirror (T1.703) 17 On cross-examination, Officer Janickey affirmed that appellant's car had side mirrors that were not cracked (T2.767). The letter "T2" followed by a page number refers to the January 15, 2014, trial transcript. 9 throw his back backwards and slid in his seat (Tl.629, 711; T2.841). 18 It appeared appellant was trying to hide from Officer Janickey (T1.704). Officer Janickey's curiosity and suspicion increased and he wanted to speak with the driver of the BMW regarding the traffic infractions (T2.833). At that time, Officer Janickey was still in his car so he could not see where appellant's hands were inside the BMW or where the seat controls were located (Tl.630; T2.840). Officer Janickey parked in front of appellant's car (T1.631, 686).19 He approached appellant from the driver's side (Tl. 631 ). The engine was running in the car and the driver's-side window was rolled down (T1.632). Officer Janickey asked appellant what he was doing in the area (Tl.632). Appellant replied that he was going into Applebee's to meet some friends (T1.632). Appellant appeared to be nervous and moved his hands and legs around a lot (Tl.633).20 Officer Janickey then asked to see appellant's driver's license (Tl .633). In response, appellant turned on the vehicle's interior lights and retrieved his license-which was located between the gear shift and center console (Tl.633; 18 On cross-examination, Officer Janickey admitted that at the Grand Jury and at the pre-trial hearing, he had testified that appellant tluew his seat back and attempted to lay low in the vehicle (Tl.713-17). He affirmed that a few months prior to trial he had an opportunity to look at appellant's car and learned that it had an electronic recline where an operator could not manually tluow the seat back- someone would have to push a button and hold it down (Tl. 717 -18). 19 Officer Janickey drew a line on People's 1, indicting his patrol path in the parking lot (Tl.639). He marked an X here he first observed appellant's vehicle (Tl.639). Appellant's vehicle was in the ninth stall from the front entrance of Applebee's (Tl.639). Officer Janickey also placed a black dot on the photo showing where he eventually parked his car (Tl.640). 20 On cross-examination, Officer Janickey confirmed that he did not testify at the Grand Jury or at the pre-trial hearing that appellant had moved his hands and feet around (T2.753). 10 T2.772).21 Officer Janickey looked at the immediate areas inside the vehicle from which appellant could grab for weapons or contraband (Tl.634). From his vantage point, Officer Janickey observed a small black plastic bag between appellant's feet that was easily accessible to appellant (Tl.634-35, 673; T2.772-73).22 Appellant's legs were approximately eight inches to a foot apart (T2.773). The bag laid flat against the dark floor mat and it was open (Tl.634; T2.781, 843). Inside the black bag were four clear closed bags containing large white rock -like substance (Tl.634, 663; T2.782-84, 805, 842-43). Based on his training, Officer Janickey believed the white substances were cocaine (Tl.634). Officer Janickey then asked appellant to step out of the vehicle and walk toward the back of the car (Tl.647-48). Appellant complied and stopped by the trunk, but then he proceeded to walk toward Applebee's (Tl.648). In order to distract and get appellant to walk back to the car, Officer Janickey asked him about a Playboy magazine he observed in the back of appellant's car (T1.649; T2.846).23 At that point, Officer J anickey did not know whether appellant had any weapons 21 The letter "T2" followed by a page number refers to the January 15, 2014, trial transcript. 22 Pictures of the driver's seat from Officer Janickey's vantage point were admitted into evidence as People's 8 and 9 (T1 .645). On cross-examination, Officer Janickey affirmed there were other places in the vehicle that someone could use to hide drugs, such as the glove compartment, center console and trunk (T1 .671-73). 23 On cross-examination, Officer Janickey affirmed he did not testify about a Playboy magazine at the Grand Jury or at the pre-trial hearing (Tl.731-32). On redirect, a photograph depicting the rear of appellant's car with a magazine below the back windshield was admitted into evidence as People's 10 (T2.838). Officer Janickey affirmed that the magazine located right below the back windshield was the Playboy magazine he observed in appellant's car at that same location (T2.839). Pictures of appellant's opened car trunk, license plate and registration sticker were admitted into evidence as People's 10, 11, and 12, respectively (Tl.655-59). 11 on him (T2.850). Appellant returned to the car and was handcuffed (Tl.648). Officer Janickey brought appellant to the police car and placed him in the rear of the car (Tl.649, 653). He then radioed for assistance (T1.649). He also checked the registration on the BMW and it was registered to appellant (T1.650)?4 Around that time, Officer Chris Wolf arrived at the scene (Tl.651 ). Officer Wolf detained appellant while Officer Janickey returned to appellant's car to retrieve the black plastic bag (Tl.651-52; T2.790). Officer Janickey entered appellant's car through the driver's side (Tl.652). He grabbed the black plastic bag and placed it on the passenger seat (Tl.652). He then saw a brown lunch bag underneath the left side of the driver's seat (Tl.652).25 Inside the brown bag were three large clear bags containing the same white rock-like substance that were similarly packaged as the ones found in the black bag (Tl.652). Officer Janickey retrieved both bags, placed them on the front passenger seat of his police vehicle (Tl.653). Officer Janickey then transported appellant to the First Precinct (Tl.653).26 Around that time, Officer Keegan arrived at the scene and drove appellant's vehicle back to the First Precinct (T1.653, 665). 24 The letter "T3" followed by a page number refers to the January 16, 2014, trial transcript. A certified abstract was admitted into evidence as People' s 18 (T3.945). The certified abstract showed appellant as the registered owner of the BMW. 25 Officer Janickey placed an X on People's 8 indicating where the black plastic bag was located in appellant's car. He also placed a B on the photograph indicating where the brown paper bag was located (T1.645-46, 652). 26 K-9 was utilized at the Precinct to search the interior and exterior of appellant's car but nothing was found (Tl.664). 12 At the Precinct, Officer Janickey gave Detective Ralph Rivera the black plastic bag and brown paper bag with the white rock-like substances (Tl.654; T2.805; T3.867).27 Detective Rivera placed the evidence in a locker at the Precinct, locked it, and held onto the key (T1.654). To process the evidence, Detective Rivera first removed the clear envelopes with the powdery substance from of the black and brown bags (T3.872). He weighed the clear envelopes with the white substance inside (T3.872). The weight was 679 grams or 10.60 ounces (T3.872). Detective Sergeant Marco Guidice then administered a field drug test on the white substance, which tested positive for cocaine (Tl.655; T3.872). Detective Rivera then put the clear envelopes with the cocaine in a secured envelope, sealed it, and transferred it to a locker in the First Precinct and locked it (T3.872). The following morning, Detective Rivera removed the sealed envelope and brought it to the lab for analysis (T3 .872). Detective Rivera also processed the black and brown bags. The black plastic bag and brown paper bag were each placed in separate bags (T3.872).28 The black plastic bag was sent to the crime lab for DNA analysis and the brown paper bag was sent to the identification section to look for fingerprints (T3.873). Ultimately, 27 The letter "T3" followed by a pager number refers to the January 16, 2014, trial transcript. 28 The brown paper bag was admitted into evidence as People's 13 and the black plastic bag was admitted into evidence as People's 14 (T3.875). 13 the black plastic bag was not swabbed for DNA and the identification section was unable to retrieve enough prints to make a sufficient comparison (T3.873-74)? 9 Peter Tracy was employed by the Suffolk County Crime Laboratory as a Forensic Scientist III and was assigned to the drug chemistry section (T3.921). His duties included testing substances for the presence or absence of controlled substances (T3 .922). He had been employed by the Suffolk County Crime Laboratory for 28 years (T3.921 ). He had analyzed tens of thousands of substances for the presence of narcotics (T3. 922). 30 On November 15, 2011, Mr. Tracy retrieved the seven plastic bags from the crime lab's main vault (T3 .925). He randomly picked three bags out of the seven for analysis (T3.929). Mr. Tracy weighed the three bags and the aggregated weight was 300.69 grams or 10.6 ounces (T3.926, 929, 936). He then administered four tests on the white substances contained within the three bags (T3 .926). The tests included a chemical test, a microcrystalline test, chromatography, and a 29 On cross-examination, Detective Rivera acknowledged that he received a memo from the crime lab, dated November 14, 2011, indicating that the black plastic bag needed to be repackaged with proper paper package (T3.893). Subsequently, Detective Rivera retrieved the black plastic bag from the crime lab and repacked it in a manila envelope (T3.894-96). Another memo from the crime lab, dated January 12, 2012, was issued regarding the black plastic bag (T3.898-900). The January 12, 2012, memo from crime lab was admitted into evidence as Defense F (T3.899). The January memo stated that the black plastic bag had been forwarded to the Property Bureau without examination because no inquiries have been made about this case or exemplars submitted for comparison (T3.900). Detective Rivera explained that appellant had refused to provide a buccal swab to retrieve his DNA and appellant's DNA was not on file for a comparison (T3.901). 30 Mr. Peter Tracy was qualified as an expert witness in the analysis of controlled substances (T3.923). 14 chromatograph/mass spectrometric test (T3.926). Based on the results of those tests, Mr. Tracy formed an opinion that the white power substance in each of the three plastic bags was, in fact, cocaine (T3.927, 929, 934).31 The Defense case Joseph Galdi's Testimony Joseph Galdi was the Supervisor of the biology section at the Suffolk County Crime Laboratory (T4.959).32 The biology section analyzes biological evidence, such as identifying body fluids and performing DNA analysis on those samples (T4.959).33 The biology section received approximately 1,400 to 1,500 cases for analysis per year and due to limited staffmg not every case would be analyzed for DNA (T4.968). Detective Rivera submitted an evidence analysis request on November 14, 2011, to analyze one black plastic bag for DNA (T4.969-70). Mr. Galdi testified that a memo was issued to Detective Rivera from the lab notifying him that the evidence had to be repackaged in a paper container (T4.971).34 The black plastic bag was repackaged and resubmitted to the crime lab (T4.972). However, Mr. 31 The seven plastic bags containing hard white powdery substance were admitted into evidence as People's 15 (T3.927-928). Mr. Tracy had labeled the three plastic bags that tested positive for cocaine as PBI, PB2, and PB3 (T3 .932). On cross-examination, Mr. Tracy affmned that he could test the white substance to determine what the actual percentage of cocaine were contained in the white substance (T3.932-35). However, based on the weight of the cocaine such testing was not necessary (T3.932-35). 32 The letter "T4" followed by a page number refers to the January 17, 2014, trial transcript. 33 Mr. Galdi was qualified as an expert witness in DNA analysis (T4.962). 34 The memo was admitted into evidence as Defense E (T4.971-72). 15 Galdi returned the black plastic bag to the Suffolk County Property Bureau without analysis and a memo was sent on January 12, 2012, to Detective Rivera explaining that the sample was not being analyzed (T4.973-74). Mr. Galdi testified that the item could be resubmitted for DNA swabbing but it was never resubmitted (T4.974-75). On cross-examination, Mr. Galdi explained that the biology section received approximately 1,600 cases in 2013 and the prior two years they received approximately 1,400 to 1,500 cases for DNA testing (T4.976). Out of those 4,500 cases, only 4 drug cases were analyzed for DNA because drug cases were not routinely analyzed for DNA (T4.977). Julio Peguero-Sanchez's Testimony Julio Peguero-Sanchez had lived in Baldwin for 12 years (T4.989). He had been a barber for more than 20 years (T4.989). In 2011, he owned two barbershops, one in Hempstead and one in Westbury (T4.990). He also owned an old BMW (T4.990). Appellant further testified that he was five foot five inches tall (T4.1 002). He stated he had to move his car seat real close so he could drive it (T4.1002). He employed 8 barbers for each of his barbershops-a total of 16 employees (T4.991). Appellant loaned his BMW to his employees two or three times a week (T4.991). 16 Appellant testified that on November 10, 2011 , he visited his friend's shop in North Babylon (T4.991-92). At approximately 6:50p.m., he left North Babylon and drove to the shopping center in Lindenhurst because he was hungry (T4.991- 92). He testified that he parked his car, put his scarf on, turned off his car, got out of his car, shut the car door, locked the door and then started to walk to Applebee's (T4.933). A man, whom appellant did not know was an officer, came over and blocked him (T4.993). He testified that this man, whom he later identified as Officer Janickey, asked, "That's your car?" (T4.994). Appellant responded in Spanish, "Yes, that's my car" (T4.994). He further testified that Officer Janickey asked him, "\Vhat are you doing around here?" to which appellant stated, 'Tm going to eat here" (T4.994). Officer Janickey then asked to see appellant's license (T4.994). Appellant responded, "Yeah, I got a license. I have my license" (T4.995). Appellant removed his license from his wallet and gave it to Officer Janickey (T4.995). Appellant testified that the following conversation ensued after Officer Janickey saw his license: Officer Janickey: Appellant: Officer Janickey: Appellant: "\Vhere are you going?" ' 'I'm going to go eat." "Oh, you live in Baldwin." "Yes, yes, I live in Baldwin." 17 Officer J anickey: Appellant: Officer J anickey: Appellant: Officer Janickey: "You know what, you live in Baldwin, move over here" and the Officer grabbed appellant's keys. "Why" "You're not supposed to be over here. "Why? I mean, I'm going to go eat." "You know why? Because you're locked up. You're going to jail" (T4.995-98). Appellant testified that Officer Janickey then placed him in his police car (T4.996). Officer Janickey then took his keys and phone (T4.996-97). Appellant further stated that Officer Janickey opened all of the car doors, the trunk and looked around the BMW (T4.996-97). Officer Janickey returned to the police car 15 minutes later and said, "You know why? You're arrested" and "You got drugs" (T4.997). Appellant then said, "Me? I don't have drugs. What are you talking about?" (T4.997). He further testified that Officer Janickey then said, "You're locked up. You're going to the precinct" (T4.998). At the Precinct, appellant saw Detective Rivera (T4.998) . Appellant testified that the following conversation between him and Detective Rivera occurred in Spanish: Det. Rivera: Appellant: "I know people like you" "What are you about? vVhat are you about? What are you about? About what? What?" 18 talking talking talking What? Det. Rivera: Appellant: Det. Rivera: Appellant: Det. Rivera: "Those drugs, those drugs are yours" "Mine? I don't know what you're talkincr about" b "They're not yours?" "No" "They're not yours? Then I'm going to do the DNA test on you and then we'll see if it's yours or not" (T4.998-99). Appellant stated that Detective Rivera then took "the little paper wools and all that stuff and he runs it like this here, on my tongue and all around here like this and then he puts it into an envelope" (T4.999). Detective Rivera then said, "Okay. We'll see you in a bit. You'll see" (T4.999).35 Appellant testified that he had never seen the seven bags of cocaine until trial (T4.1 003). He denied having cocaine by his foot (T4.1 003). He testified he had never seen the black plastic bag or the cocaine in his car (T4.1003, 1030). On cross-examination, appellant confirmed that he owned the BMW and that he was familiar with the items in his car (T4.1 004). He denied that the rearview mirror was in the back seat (T4.1005-06). He admitted that when Officer Janickey approached him, Officer Janickey identified himself as a police officer (T4.1009). Appellant maintained that he had loaned his car to 16 employees (T4.1012). However, he could not remember if he had loaned his car out on November 10, 35 A picture of Detective Rivera holding a bag was admitted into evidence as Defense G (T4.1002). 19 2011, nor could he remember whether he had loaned his car the day prior to November 10, 2011 (T4.1012). Also, appellant admitted that despite being arrested for cocaine possession he did not question his employees at the barbershop regarding the cocaine that was found in his BMW (T4.1 042). He also testified that no one had called him regarding the cocaine (T4.1 042). He stated that he never sold cocaine (T4.1 042). Appellant further explained that on November 10, 2011, at approximately 5:45p.m., he visited his friend's shop but it was closed (T4.1013). He stated that between 5:45p.m. to 6:55p.m. he went to a dealership to look at cars (T4.1014). The dealership was just a bit up the road from his friend's shop on Sunrise Highway (T4.1014). Afterwards, appellant went to Applebee's at the Lindenhurst shopping center (T4.1 0 15). Around the time that appellant was planning to leave the dealership, his girlfriend called his cell phone and they had a phone conversation where they arranged to meet at the Applebee's in Lindenhurst to grab a bite to eat (T4.1016, 1019). His girlfriend's name was Vivian Castillo, but sometimes appellant would call her by her nickname, Bibian (T4.1016-17). Appellant testified that he did not speak with anyone else on his phone after making arrangements to meet his girlfriend (T 4.1 020). Appellant then testified that his conversation with his 20 girlfriend was v1a text messages (T4.1032-33). Vivian's contact name m appellant's phone was Bib ian (T4.1 038).36 The People's Rebuttal The prosecution introduced text messages that were retrieved from appellant's cell phone (T5.1054-66, 1124-27).37 The test messages contained conversations that took place between November 9, 2011, and November 10, 2011, between appellant and another person (Bb! !pul) regarding the meeting at Applebee's. 38 The Verdict On January 22, 2014, the jury found appellant guilty of all counts in the indictment, which included criminal possession of a controlled substance in the first degree, operating a motor vehicle without a rearview mirror, and having a defective license plate light. 36 The cell phone that appellant had with him on November 10, 201 1, was admitted into evidence as People's 19 (T4.1048). 37 The Jetter "T5" followed by a page number refers to the January 21, 2014, trial transcript. 38 The text messages were admitted into evidence as People's 20 (T4.1 069). Defense counsel stipulated that the text messages were retrieved from appellant's cell phone, that the text messages were accurately translated from Spanish to English, the times from when the text messages were received and sent were accurate, and that they reflect a conversation that had taken place between appellant and someone else on November 10, 2011 (T4.1072-73). Defense counsel also stipulated that Baldwin was 17 miles away from Applebee's and Applebee's was approximately 4 miles from North Babylon (T4.1 066). 21 Presentence Investigation Report ("PSI"), dated February 13, 2014 A pre-sentence investigation report was ordered on January 22, 2014 (PSI.1).39 During his probation interview, appellant adamantly denied any guilt (PSI.5). He accused the officer of "lying" (PSI.6). Appellant stated that "he has never used, sold or possessed illegal drugs" (PSI.6). The Department of Probation recommended a period of imprisomnent (PSI.6). The Sentence On February 25, 2014, appellant was produced from custody with counsel for sentencing (S.2).40 Appellant was sentenced to 10 years imprisonment with 5 years of post-release supervision (S.l4). He was sentenced to "time-served" on his two traffic infraction convictions (S.l 5). 39 Numbers in parentheses preceded by "PSI" refer to the pre-sentenced investigation report, dated February 13, 2014. 40 Numbers in parentheses preceded by "S" refer to the transcript of the sentence proceedings in the Supreme Court, Suffolk County (Condon, J.), on February 25, 2014. 22 POINT I OFFICER JANICKEY HAD PROBABLE CAUSE TO DETAIN APPELLANT BASED ON THE TWO TRAFFIC INFRACTIONS OFFICER JAl\'ICKEY HAD OBSERVED WIDLE HE WAS ON PATROL [addressing Appellant's Point II] Appellant contends that the trial court erred by not suppressing the physical evidence after the Mapp!Dunaway hearing. He alleges that Officer Janickey had not witness any criminal activity prior to blocking appellant's vehicle. He argues that Officer Janickey's conduct constituted an illegal seizure and all evidence obtained from the illegal seizure should be suppressed. Appellant's claims are meritless and contradicted by the record. It is a well-established rule that a police officer may initiate a vehicle and traffic stop when he or she has probable cause to believe that the driver of an automobile has committed a traffic violation. In determining probable cause, "neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant." People v. Robinson, 97 NY2d 341, 349 (2001); see also, People v. Edwards, 14 NY3d 741 (2010). Here, while on patrol, Officer Janickey saw appellant's BMW in one of the parking stalls in front of the Applebee's parking lot with no light illuminating the license plate (H.9-ll, 25-26). He also saw that the BMW had no rearview mirror 23 (H.12, 28; I-!2.27). These two traffic infractions provided Officer Janickey with an appropriate basis to stop appellant's vehicle- which, moreover, was already stopped. See People v. Graham, 54 AD3d 1056 (2d Dept 2008) ("officer's observation of traffic infractions justified the initial stop and gave him 'the right to ask questions relating to the defendant's destination, to request that he produce his license and registration, and to ask him to stand by momentarily pending further investigation'") quoting People v. Leiva, 33 AD3d 1021 (2d Dept 2006); see also, People v. Edwards, 14 NY3d at 742 ("[t]he initial stop of defendant's vehicle was permissible and the police officers' subjective motivation to investigate possible drug activity does not negate the objective reasonableness of the officers' actions"). Thus, the trial court correctly determined that it was proper for Officer Janickey to ask for appellant's license and registration. Because the police officer was in a position to lawfully view the drugs in appellant's car, appellant's arrest and the seizure of the drugs were in all respects proper. See People v. Jones, 286 AD2d 510 (2d Dept 2001) (seizure of the cocaine and razor blades proper since the police officer could see into the bag containing those items from his lawful vantage point). 24 POINT II THE TRIAL COURT PROPERLY CURTAILED TRIAL COUNSEL'S CROSS-EXAMINATION OF OFFICER JANICKEY TO PREVENT THE JURY FROM RECEIVING MISLEADING INFORMATION THAT IT WAS LEGAL TO OPERATE A PASSENGER TYPE VEHICLE WITH NO REARVIEW MIRROR (addressing Appellant's Point I and V] Appellant contends that the trial court violated his confrontation and due process rights when it curtailed trial counsel's cross-examination of Officer Janickey regarding the validity of issuing a traffic ticket for having no rear view mirror pursuant to VTL §375(1 O)(a). The trial court properly curtailed trial counsel's questioning of Officer Janickey as to where in the VTL §375(1 O)(a) does it state that not having a rearview mirror would violate that statue. Trial counsel' s line of questioning would have misled the jury as, despite Officer Janickey's citation to the wrong section of law, it is a VTL violation to drive a passenger vehicle without a rearview mirror. Trial counsel conducted a detailed, thorough and lengthy cross-examination of Officer Janickey that consisted of 153 pages. However, appellant contends that his trial rights were violated when the court disallow trial counsel to ask Officer Janickey as to where exactly in the statute for VTL §375(10)(a) contain the words "rearview mirror." 25 Vehicle and Traffic Law §375(10)(a) states that "[e]very motor vehicle, when driven or operated upon a public highway, shall be equipped with a mirror or other reflecting device so adjusted that the operator of such vehicle shall have a clear and full view of the road and condition of traffic behind such vehicle." !d. Trial counsel's questions regarding VTL §375(10)(a) alluded to the idea that there were no vehicle and traffic statute that requires passenger type motor vehicles to have rearview mirrors (Tl.690-91). As evidenced by the record, trial counsel's intent was to impeach the Officer's credibility by showing the jury that there was no section in the VTL that specifically uses the word "rearview mirror" (T1.695- 96). This is simply untrue. Vehicle and Traffic Law §375(10)(c) requires every passenger motor vehicle to be equipped with adjustable interior mirrors.41 Trial counsel's questions would have misled the jury to believe that the VTL does not require rearview mirrors, thus suggesting the police officer's approach of appellant's vehicle was improper. Under these circumstances, the trial court appropriately excised its discretion to curtail trial counsel's cross-examination. See People v. Stevens, 45 AD3d 610, 611 (2d Dept 2007) ("trial court has broad discretion to limit cross-examination when questions are repetitive, irrelevant or only marginally relevant, concern collateral issues, or threaten to mislead the jury). 41 This statute applies to motor vehicles registered in New York, manufactured or assembled after June 13, 1969, and designated as a 1970 or subsequent year model. 26 Although the trial court did not erred in limiting trial counsel's cross- examination, the People do concede that appellant's conviction for violating Vehicle and Traffic Law §375(10)(a) could not be sustained because he was charged under the wrong VTL section. 27 POINTlli BECAUSE OF THE OVERWHELMING EVIDENCE OF APPELLANT'S GUILT IT WAS HARMLESS ERROR FOR THE PROSECUTOR TO INADVERTENTLY ELICIT TESTIMONY FROM DETECTIVE RIVERA THAT APPELLANT HAD INVOKED HIS RIGHT TO COUNSEL [addressing Appellant's Point III] Appellant argues that his due process rights were violated when the prosecutor elicited testimony on Detective Rivera's direct examination that he had advised appellant of his Miranda rights and that appellant invoked his right to counsel. He contends that the jury inferred appellant's guilt directly from his post- arrest silence and his conviction should be vacated as a result. It has been well-established that evidence of a defendant's pre-trial silence is generally inadmissible on either the prosecution's direct case or to impeach a defendant's trial testimony. See People v. Williams, 25 NY3d 185, 191 (2015). However, it is not per se reversible error if such evidence were elicited at trial. See People v. Thornton, 105 AD3d 779, 780 (2d Dept 2013) (testimony that defendant had invoked his right to remain silent was improperly elicited but error was harmless "since the evidence of the defendant's guilt, without reference to the error, was overwhelming, and there is no reasonable possibility that the error might have contributed to his conviction"); People v. Copp, 107 AD3d 911, 912 (2d Dept 2013) (harmless error where prosecution impeached "defendant's testimony with his failure to come forward to the police with an exculpatory version of the events" 28 and commenting defendant's post-arrest silence in sununation); People v. Hendricks, 222 AD2d 74, 81 (2d Dept 1996) (error was harmless as police testimony regarding defendant's refusal to give written statement was clearly not in response to deliberate attempt by prosecutor to elicit statement and prosecutor made no reference to defendant's failure to give written statement during either his opening statement or his summation). Here, although it was an error that evidence of appellant's post-arrest silence was elicited on the prosecution's case-in-chief, such error was hannless. The prosecutor had asked Detective Rivera a general question of"[ c Jan you explain to the jury how you processed the defendant" (T3.868). This question inadvertently elicited testimony that appellant had invoked his right to counsel (T3 .868).42 The prosecutor did not persist with this line of questioning and he did not comment on appellant's post-arrest silence in his opening statement or in his summation. Moreover, there is no reasonable possibility that the error might have contributed to his conviction because of the overwhelming evidence in support of appellant's guilt. The People established at trial that appellant's BMW was idling in a parking stall without lights illuminating the license plate numbers and without a rearview mirror (Tl.626, 628, 676, 689, 730). Officer Janickey observed these equipment violations and properly approached to investigate. During the 42 Trial counsel did not want a curative instruction because he felt it would draw more attention to the testimony (T3.870-71, 911). 29 investigation, Officer J anickey saw an opened black plastic bag lying flat against the floor in between appellant's feet (Tl.634-35, 673; T2.772-73, 781, 843). On top of the black bag were four clear closed bags containing large white rock -like substances (Tl.634, 663; T2.782-84, 805, 842-43). Officer Janickey also found an additional three large clear bags with the same white rock-like substance in a brown paper (Tl.652). Pictures of appellant's car without a rearview mirror were admitted into evidence. Also, the seven clear plastic bags containing white rock-like substances were admitted into evidence as well. Peter Tracy, a Forensic Scientist with the Suffolk County lab, had weighed and analyzed three of the clear bags with white rock-like substances (T3 .921, 925- 926, 929, 936). The aggregated weight of the three bags was 300.69 grams or 10.6 ounces (T3 .926, 929, 936). The white substances in each of the three clear plastic bags were cocaine (T3.927, 929, 934). Thus, based on the consistent testimonies and the corroborating physical evidence, there was no reasonable possibility that the one time reference of appellant's post-arrest silence would have contributed to his conviction. 30 POINT IV APPELLANT RECEIVED A FAIR TRIAL AND ANY UNCONCEDED ERRORS DERIVING FROM THE TEXT MESSAGES AND FROM THE PROSECUTOR'S REMARKS AT SUMMATION WOULD BE HARMLESS IN LIGHT OF THE OVERWHELMING EVIDENCE OF APPELLANT'S GUILT (addressing Appellant's Point IV] Appellant contends that he was denied a fair trial because the prosecutor improperly introduced text messages that led the jury to believe appellant was involved in the sale of cocaine rather than in possession of the illegal substance. He argues that the prosecutor compounded the error during summation by making numerous references to the dollar value of the cocaine, exaggerated the weight of the cocaine, and made improper references to the text messages.43 Through his direct testimony, appellant affirmatively placed in issue Officer Janickey's credibility regarding the encounter at the Applebee's parking lot. He also denied having knowledge that there was cocaine in his vehicle. The trial court properly admitted the text messages to refute appellant's claims. Also, appellant's claim that the prosecutor made improper comments at summation is unpreserved for appellant review. In any event, the record shows that prosecutor's remarks in summation were fairly inferable from the evidence. Finally, because of the 43 In his brief, appellant makes an unpreserved assertion that the text messages were illegally obtained from appellant's cellular phone. These text messages were retrieved through a duly executed search warrant signed by Justice William J. Condon. There were no motions filed or hearings requested to contest the validity of the search warrant. Thus, the text messages were legally obtained, in any event. 31 overwhelming evidence in support of appellant's guilt, any unconceded errors would have been harmless. A. The text messages were properly introduced to refute an affirmative fact placed in issue by appellant, the text messages makes no mention of any prior bad or immoral acts and no testimony were elicited from Detective Rivera that appellant was a drug dealer. Appellant contends that the text messages were improperly admitted because: (1) they alluded to a prior uncharged crime of criminal sale of a controlled substance and violated the Molineux and (2) the text messages were introduced to impeach appellant's testimony regarding who he was meeting at Applebee's, which was a collateral issue. He also claims Detective Rivera improperly testified that appellant sold cocaine. Appellant's claims are meritless. Contrary to appellant's contention, the admission of the text messages neither violated Molineux or the collateral evidence rule. Given that appellant's testimony was diametrically opposed to that of Officer Janickey, it amounted to a claim that the officer lied about the entire encounter at the Applebee's parking lot. On his direct examination, appellant testified he was walking towards Applebee's when Officer Janickey first approached him (T4.993-94). He testified that when he produced his license to Officer Janickey, the license was on his person and not in his car (T4.994-95). He claimed that Officer Janickey took his car keys, opened his car doors, and searched the car including the trunk (T4.996-97). He denied having any knowledge that cocaine were in his car (T4.998-l 003). He denied 32 having drugs in between his legs near the driver's seat (T4.1003). He claimed he never saw the black and brown bags and the seven clear plastic bags containing cocaine until trial (T4.1003). Appellant alluded to the idea that Officer Janickey had aspirations to become a detective and he framed appellant in order to make an arrest for a class A-felony (T1.676-75). On cross-examination, appellant stated he had a conversation with his girlfriend via text messages to meet at Applebee's to eat (T4.1016-17, 1032-33). He testified he did not speak with anyone else on his cell phone other than his girlfriend (T4.1 020). The text messages that were introduced on the People's rebuttal show, however, that appellant had plans to meet up with someone other than his girlfriend. The text messages shows that appellant addressed the person he communicated with as "my little brother" and that person addressed appellant as "old man" (T5. 1126-27). The text messages also shows that appellant did not make arrangements with his girlfriend to eat at Applebee's. Appellant was meeting someone at a restaurant in a plaza located in Copiague to talk. This supported Officer Janickey's testimony that during his vehicle and traffic investigation appellant stated he was meeting friends at Applebee's-not that he was waiting for his girlfriend to grab a bite to eat (Tl.632). This evidence, although minor, helped corroborate Officer Janickey's testimony- a fact that appellant affirmatively tried to disprove. 33 Because appellant directly placed Officer Janickey's credibility in issue the prosecutor properly introduced evidence to refute appellant's challenge to Officer Janickey testimony about what happened at the Applebee's parking lot. See People v. Harris, 57 NY2d 335 (1982) ("'[r]ebutting evidence ... means not merely evidence which contradicts the witnesses on the opposite side and corroborates those of the party who began, but evidence in denial of some affirmative fact which the answering party has endeavored to prove"') quoting Marshall v. Davies, 78 NY414, 420 (1879); see also, People v. Ploska, 52 AD3d 742 (2d Dept 2008) (rebuttal evidence admissible to disprove defendant's "claim that, as a result of brain damage caused by the onset of multiple sclerosis, he was not guilty by reason of mental disease or defect"); People v. Harris, 232 AD2d 426 (2d Dept 1996) (rebuttal evidence properly admitted to refute affirmative facts defendant had intended to prove). And, the conv.ersations in the text messages made no reference to any prior bad or immoral acts. There was no mention of cocaine or the sale of illegal drugs in the text messages. Thus, the introduction of the text messages did not violate lvlolineux. Similarly, appellant's contention that Detective Rivera testified that appellant sold cocaine is unsupported by the record. The contested portion of the cross-examination ofDetective Rivera consists of the following: Trial Counsel: And what was the reason that you wanted it swabbed for DNA? 34 Det. Rivera; Trial Counsel: Det. Rivera: Trial Counsel: Det. Rivera: Trial Counsel: Det. Rivera: To either identify the defendant or anybody else that may have touched that bag. All right. So you wanted to see if his DNA was on the bag, right? Yes. But also maybe his DNA wasn't on the bag that would be important for us, right? Or maybe anybody that he may have been dealing with, yes. But his - his DNA may not have been on the bag. That's always possible, yes (T3.896). Trial counsel later made an application for a mistrial because Detective Rivera's testimony suggested that appellant was a drug dealer (T3.939). The prosecutor correctly explained that appellant was found in possession of cocaine at a parking lot. Appellant must have received this cocaine from someone- and as Detective Rivera testified, that person's fingerprints could be on the bag. Detective Rivera did not testify that appellant sold cocaine. His testimony was proper and responsive to trial counsel's questions. Further, any errors would have been harmless in light of the overwhelming evidence of appellant's guilt. See People v. Ross, 104 AD3d 878, 880 (2d Dept 35 2013) (harmless error where trial court improperly admitted "evidence of an uncharged crime"); People v. Sirico, 66 AD3d 1047 (2d Dept 2009) (any error in admitting evidence of a prior bad act was harmless due to overwhelming evidence of appellant's guilt); People v. Greene, 150 AD2d 604 (2d Dept 1989) (rebuttal testimony erroneously admitted but error was harmless); People v. Nfathure, 111 AD2d 876 (2d Dept 1985) ("rebuttal testimony, while improperly introduced solely to impeach defendant 's credibility, was harmless error"); People v. Hilliard, 49 AD3d 910 (3d Dept 2008) (trial court improperly allowed testimony of police officer on collateral matter but error was harmless in light of overwhelming evidence of guilt) B. Appellant's claim that some of the prosecutor's remarks at summation constituted reversible error is unpreserved for appellate review and meritless. Appellant claims that the prosecutor made various remarks during summation that were improper and constituted reversible error. Specifically, appellant contends that the prosecutor made improper references that appellant was a seller of illegal drugs. He also contends that the prosecutor exaggerated the weight of cocaine and its dollar value. Appellant's claims are unpreserved for appellant review and meritless. In order to preserve his claims for appellate review, appellant must object on the grounds now presented on appeal. C.P.L. §470.05(2); People v. Tonge, 93 NY2d 838, 839 (1999) ("a party's failure to specify the basis for a general 36 objection renders the argument tmpreserved for this Court's review"); People v. Rivera, 130 AD3d 655 (2d Dept 2015) (defendant failed to preserve his claim that prosecutor's summation comments constituted reversible error by failing to "object, request curative instructions, or timely move for a mistrial"); People v. Pierre, 126 AD 3d 817, 818 (2d Dept 20 15) (defendant failed to preserve his claim that the prosecutor made improper comments during her opening statement and in summation). Here, appellant failed to object to any of the challenged comments during summations. As such, he has failed to preserve his claims for appellate review. In any event, the prosecutor's comments were proper and did not deprive appellant of a fair trial. Because appellant had affirmatively denied having knowledge that he was in possession of cocaine, the prosecutor's remarks concerning the dollar value of the cocaine, weight of the cocaine, and drawing inferences that appellant arranged a sale were fair comments upon the evidence. These comments addressed appellant's claimed lack of knowledge defense. Any errors from the prosecutor's comments would be harmless, in any event. A prosecutor's summation cannot be considered in a vacuum but must be assessed against the realities of a trial. Specifically, it must be evaluated against the background of the trial evidence and defense counsel's closing argument. See 37 People v. Lenihan, 125 AD3d 788, 789 (2d Dept 2015) (defendant not deprived of a fair trial because prosecutor's remarks "were fair comment on the evidence, responsive to the defense summation and remained within the broad bound of rhetorical comment permissible in closing arguments"); People v. Rogers, 92 AD3d 903, 904 (2d Dept 2012) (no error where "most of the challenged remarks were either responsive to the defense counsel' s summation or fair comment upon the evidence" and the improper remarks were harmless); People v. Houston, 82 AD3d 1122, 1123 (2d Dept 2011) (prosecutor's remarks which mischaracterized [defendant's] testimony, "improperly attacked his credibility and vouched for the credibility of the police witnesses" does not warrant a reversal because the remarks "did not deprive the defendant of a fair trial"). Here, appellant denied having knowledge of the cocaine found in his car. He claims he did not see any drugs and denied having possession of any cocaine. Appellant affirmatively placed his mental state in issue, which is an element that the prosecution must prove beyond a reasonable doubt. The prosecutor commented on the dollar value of the cocaine to explain why appellant slid backwards in his seat when he made eye contact with Officer Janickey. Appellant was in possession of a lot of cocaine, valued at least $20,000, and he knew he was 38 in possession of a large amount of cocaine. Appellant slid down in his seat to avoid detection from law enforcement (T5.1118, 1120). 44 Similarly, the prosecutor properly drew inferences from the evidence that appellant was arranging a meeting with someone for a drug transaction. Appellant's claim that he was at Applebee's for an innocent rendezvous with his girlfriend invited introduction of the text messages and related comments. Appellant was not forthright in his text messages as to his location and as to what he was going to do at that location (T5.1117). The prosecutor drew a reasonable inference from the evidence that appellant was arranging a sale. Contrary to appellant's contention, the prosecutor did not draw the inference that appellant was involved in a drug sale to inflame the jury. This inference helped establish that appellant knew he was in possession of cocaine-a fact that appellant denied. As the prosecutor explained on summation, you . cannot read appellant's mind to see if he had actual knowledge of the cocaine (T5.1137). However, based on all the evidence, one could infer that appellant knew he was in possession of cocaine because he made arrangements to meet someone and he was found in possession of an extremely large amount of cocaine- 1 0.6 ounces, with a street value of $20,000. That amount obviously would not be for one's personal use. The prosecutor's comments were fairly inferable from the evidence and 44 The letter "TS" followed by a page number refers to the January 21, 2014, trial transcript. 39 proper. Although inferences were made, based on the evidence, that appellant was involved with a possible drug transaction; the prosecutor never stated that appellant was meeting someone to sell cocaine. The prosecutor commented that the text messages corroborated with the appellant's possession of cocaine (T5.1134-35). As to his claim that the prosecutor exaggerated the weight of the cocaine, the record shows that the prosecutor specifically noted Peter Tracy's testimony and accurately reiterated the weight of the cocaine to be 10.6 ounces (T5.1133-34). Thus, the comments complained of were fair comments upon the evidence. In any event, any unconceded errors arising from the prosecutor's summation should be deemed harmless. Prior to summations and prior to deliberations, the trial court advised the jury that counsels' summations were not evidence and the jury was the ultimate finder of fact (T5. 1080-81, 1143). It should be assumed that the jury followed these instructions and relied on the evidence that was admitted at trial in the determination of this case. See, e.g., People v. Evanson, 71 AD3d 782 (2d Dept 2010). In light of the court's jury instructions and the overwhelming evidence of appellant's guilt, any error would have been harmless. See People v. Mitchell, 125 AD3d 790 (2d Dept 2015) (prosecutor's remarks constituted harmless error); People v. Oliphant, 117 AD3d 1085, 1087 (2d Dept 2014) (any error was harmless "as the evidence of the defendant's guilt was overwhelming and there is no significant probability that the 40 error contributed to the defendant's conviction"); People v. Philbert, 60 AD3d 698, 699 (2d Dept 2009) ("[a]though some of the remarks were improper, they were not so egregious as to deprive the defendant of a fair trial"). Also, any cumulative error arising from the text messages and the prosecutor' s comments would also be harmless as well. 41 POINTV THE SENTENCE IMPOSED WAS LEGAL, COMMENSURATE WITH THE GRAVITY OF THE CRIMES, AND SHOULD NOT BE MODIFIED [addressing Appellant's Point IV claim for sentence modification, at appellant's brief, pg. 48] Appellant contends that his due process right was violated at sentencing because the prosecutor made references that he was a cocaine dealer. He argues that in support of the prosecutor's sentence recommendation of 12 years incarceration the prosecutor relied heavily that appellant was a drug trafficker. The record, however, shows that appellant's sentence is fully supported by the facts underlying his conviction. The record shows that the trial court disregarded any references to appellant as a cocaine dealer. The court specifically stated that appellant was never indicted for sale nor was he indicted for possession with intent to sell (S.l3). The court properly considered appellant's age, criminal history, presentence investigation report, amount of cocaine that appellant was in possession and arguments from both counsels in determining the appropriate sentence (S.l3-14). See People v. Dyer, 60 AD3d 690 (2d Dept 2009) (factors such as defendant's age, criminal history, family background, community involvement, and the recommendation of the District Attorney's Office should be considered). With all these factors in mind, the 42 court properly sentenced appellant to 10 years incarceration with 5 years of post- release supervision (S.l4). 43 CONCLUSION Based on all the foregoing, appellant's judgment of conviction should be affirmed, with the exception of the rearview mirror conviction. DATED: August 19,2015 Riverhead, New York Respectfully submitted, THOMAS J. SPtTA District Attome 1 of Suffolk County Attorney for .spondent __....---- BY: 44 ~ Assistant District Attorney Of Counsel Criminal Courts Building 200 Center Drive Riverhead, New York 11901 (631) 852-2500 Certificate Of Compliance With 22 N.Y.C.R.R. 670.10.3(a) (3) LAUREN TAN, an attorney duly admitted to practice in the courts of this State and of counsel to THOMAS J. SPOT A, District Attorney of Suffolk County, attorney of record for Respondent in this case, certifies that the within brief is double spaced, uses 14 and 12 point Times New Roman font for text and footnotes respectively, and contains 8,129 words, excluding the table of contents, certificate of compliance and proof of service. ~AURENTAN I Assistant District Attorney