The People, Respondent,v.Julio Peguero-Sanchez, Appellant.BriefN.Y.March 21, 2017Court of Appeals State of New York 20 Eagle Street . COUNTY OF SUFFOLK OFFICE OF DISTRICT AnORNEY THOMAS J. SPOTA DISTRICT ATTORNEY January 9, 2017 Albany, New York 12207-1095 To the Honorable Court: Re: People v. Julio Peguero-Sanchez Argument on the Merits APL-2016-00195 This letter contains arguments on the merits in support of an affirmance of appellant's judgment of conviction pursuant to Court o[ Appeals Rules ofl>racticc §500.11. Appellant contends that his conviction for criminal possession of a controlled substance in the fust degree [PL §220.21(1)] should be reversed because: (1) the court improperly admitted text messages retrit:vetl from appellant's cell phone; (2) Detective Rivera testified thai D:"TA on the bag that the cocaine was found in could have belonged to anyone who appellant had been "dealing with"; (3) the prosecutor made improper comments during summation; (4) the prosecutor improperly elicited testimony of the arresting officer's experience with narcotic salt:s and arrests; (5) the prosecutor committed reversible error when he elicited testimony that appellant invoked his right to counsel; (6) appellant's due process rights were violaied at sentencing because prosecutor made references that appellant vlas a drug dealer; and (7) the cumulative effect of all these alleged errors violated appellant's right to a fair trial. None of appellant's claims-either singly or cumulatively-merits a new trial, especially given the overwhelming evidence of appellant's guilt. Also, some of appellanfs claims are beyond this Court's re"\-iew. Appellant's arguments pertaining to sununation-related errors and errors concerning the arresting officer's testimony about his experience with narcotic sales and arrest were not preserved for appellate review. APPEALS BUREAU CRIMINAL COURTS BUILD!I\G, 2:)0 CENTER DRIVE, RIVERHEAD, N.Y. 11 ?01-3388 TE.EPHOI\E (631) 85?.-2469 • FAX TRANSJV,ITIA~ (631) 852-2762 A. Appellant's text messages were properly admitted as rebuttal evidence to corroborate the circumstances of appellant's arrest and his guilt. Appellant's further claim that Detective Rivera testified that appellant was a drug dealer is uot supported by the record. Appellant's contention that the admission of his text messages on the prosecution's rebuttal case violated Molineux and the collateral evidence rule are meritless. At trial, the arresting officer and appellant each testified to very different versions of the events ocurring prior to and after the arrest. Officer Janickey testified that on November 10, 2011, at approximately 7:00 p.m., he was patrolling the parking lot in a shopping center where there had been public complaints about, and arrests for, drug dealing (Tl.607-08, 622). 1 He observed a 1995 BMW in one of the parking stalls with its engine running with no illuminated license plate (Tl.626, 676, 730). As he circled the vehicle, Officer Janickey noticed the vehicle did not have a rear-view mirror (T1.627-28, 677, 689). He testified that he and appellant made eye contact and appellant reclined his seat and slid down in his seat (Tl.629, 711; T2.841).2 Officer Janickey then parked his vehicle, approached appellant's vehicle from the driver's side, and asked appellant what he was doing (Tl.631-32, 686). Appellant appeared to be nervous and moved his hands and legs a lot (Tl.633 ). Appellant replied that he was going into Applebee's to meet some friends (Tl.632). Officer Janickey then asked appellant to produce his driver's license (Tl.633). When appellant turned on the vehicle's interior lights to retrieve his license, Officer Janickey saw an open black plastic bag between appellant's feet (Tl.633-35, 673; T2. 772-73). He also observed that on top of the bag in plain view were several sealed clear plastic bags containing large white rock-like substances (Tl.634, 663; T2.782-84, 805, 842-43). Based on his training, Officer Janickey believed the white substances were cocaine (Tl.634). Subsequently, appellant was handcuffed, brought to the police car, and placed in the rear of the car (T1.648-49). Officer Janickey radioed for assistance (Tl.649). When back-up arrived, Officer Janickey entered appellant's car to retrieve the black plastic bag (Tl.651-52). He then saw a brown lunch bag underneath the left side of the driver's seat (T1.652). 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). The substances in the bags, of course, turned out to be crack cocaine (T3.927, 929, 934).3 In contrast to J anickey' s testimony, appellant testified that while he was walking to Applebee's he was approached by Officer Janickey, who asked to see appellant's license, made inappropriate remarks, and then supposedly arrested appellant (T4.991-96).4 While appellant was seated in the patrol vehicle, he claimed that Officer J anickey took his car keys from appellant's pocket, opened the doors and trunk of appellant's vehicle, and searched the vehicle (T4.996-97). Janickey returned to his patrol car 15 minutes later and advised appellant that he was under arrest for drugs (T4.997 -98). 1 The letter 'TI" followed by a page number refers to the January 14, 2014, trial transcript. 2 The letter "1'2" followed by a page number refers to the January 15, 2014, trial transcript. 3 The letter "T3" followed by a pager number refers to the January 16, 2014, trial transcript. 4 The letter "T4" followed by a page number refers to the January 17,2014, trial transcript. 2 During his testimony, appellant vehemently denied the presence of plastic bags in his vehicle, denied that his vehicle's rear-view mirror was missing, and denied any knowledge of drugs in his vehicle (T4.1003-06). Appellant explained that he often loaned his vehicle to his employees from his barbershop, but did not recall who had last borrowed it (T4.1012). Appellant also testified that he had been texting his girlfriend about meeting at Applebee's (T4.1016-20, 1032-33, 1038). Given that appellant's testimony was diametrically opposed to that of Officer J anickey, it amounted to a claim that the officer lied about the entire encounter at the Applebee's parking lot. The text messages that were introduced on the People's rebuttal showed, however, that appellant had plans to meet up with someone other than his girlfriend. The text messages showed that appellant addressed the person he communicated with as "my little brother" and that person addressed appellant as "old man" (T5.1126-27) 5 The text messages also showed 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 J anickey' s testimony that during his investigation appellant stated he was meeting friends at Applebee's- not that he was waiting for his girlfriend to grab a bite to eat. This evidence, although minor, helped corroborate Officer Janickey's testimony-a fact that appellant affirmatively tried to discredit. Notably, appellant's girlfriend never testified to support a claim that they were meeting that night, further reflecting the relevance of the text messages. Because appellant directly placed Officer Janickey's credibility in issue, the prosecutor properly introduced evidence to refute appellant's challenge to Officer J anickey' s 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 NY 414, 420 (1879); see also, People v. Harris, 232 AD2d 426 (2d Dept 1996) (rebuttal evidence properly admitted to refute affmnative facts defendant had intended to prove). And, the conversations in the text messages made no reference to any prior bad or inunoral 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 Molineux. Similarly, Detective Rivera did not testifY appellant sold cocaine. During cross- examination, trial counsel asked Detective Rivera to explain why he had sent to the lab for DNA tests the bag in which the cocaine was found. Detective Rivera responded that DNA tests could identifY anyone who may have touched the bag, including appellant or "anybody that he may have been dealing with" (T3.896). Appellant claims that Detective Rivera's testimony implied that appellant was a drug dealer. On the contrary, 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 fmgerprints could be on the bag. His testimony was proper and responsive to trial counsel's questions: Detective Rivera never testified that appellant was a drug dealer or that he sold cocaine. 5 The letter "T5" followed by a page number refers to the January 21, 2014, trial transcript. 3 Moreover, any errors would have been harmless in light of the overwhelming evidence 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. Officer Janickey observed these equipment violations and properly approached to investigate. The plastic bags containing white rock-like substances were admitted into evidence. Peter Tracy, a Forensic Scientist with the Suffolk County lab, had weighed and analyzed three of the clear bags with white rock-like substances. The white substances were cocaine and the aggregated weight of the three bags was 300.69 grams or 10.6 ounces. Pictures of appellant's car without a rearview mirror were adruitted into evidence as well. Thus, any error would have been harmless. See People v. Kims, 24 NY3d 422, 439 (2014) (although admission of evidence of defendant's alleged gang affiliation was improper, error was harmless); People v. Eyer, 21 NY3d 887, 888 (20 13) (any error in admitting prior bad act evidence was harmless where evidence of defendant's guilt was overwhelming). B. Appellant's claim that prosecutor's remarks during summation constituted reversible error is unpreserved for appellate review and meritless. Appellant claims that the prosecutor made improper references that appellant was a drug dealer and that the prosecutor exaggerated the weight of cocaine and its dollar value. In order to have preserved his claims for appellate review, appellant must have made contemporaneous objections on the grounds now presented on appeal. CPL §470.05(2); People v. Tonge, 93 NY2d 838, 839 (1999) ("a party's failure to specifY the basis for a general objection renders the argument unpreserved for this Court's review"). An objection must have been made at the time the challenged remarks were made at summation otherwise the claims would be unpreserved for appellate review. And, raising objections to the prosecutor's comments or remarks for the first time in a post-summation mistrial motion is insufficient to preserve the claims. See People v. Romero, 7 NY3d 911, 912 (2006); People v. Barton, 110 AD3d 1089, 1090 (2d Dept 2013); People v. McCall, 80 AD3d 626, 627-28 (2d Dept 2011). As argued below and determined by the Appellate Division, because appellant failed to object to any of the challenged comments during summation, his summation-related arguments are unpreserved for appellate review. Moreover, the prosecutor's comments did not deprive appellant of a fair trial as they constituted proper comment on the evidence or fair response to the defense counsel's summation. Because appellant had affirmatively denied having knowledge that he was in possession of . cocaine, which is an element that the prosecution had to prove beyond a reasonable doubt, the prosecutor's remarks concerning the dollar value of the cocaine, weight of the cocaine, and comments on the coded language in the text messages helped refute appellant's lack of knowledge defense. As the prosecutor explained during summation, you cannot read appellant's mind to see if he had actual knowledge of the cocaine (T5.1134-37). However, based on all of 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 10.6 ounces of cocaine, with a street value of $20,000. That amount of cocaine is inconsistent with personal use. 4 That the evidence supported an inference that appellant was meeting someone for a drug transaction was relevant to demonstrating his knowledge about the drugs in his own car. 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. The prosecutor drew a reasonable inference from the evidence that appellant was arranging a sale. 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's comments were fairly inferable from the evidence and proper. 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 and accurate comments upon the evidence. And, any unconceded errors arising from the prosecutor's summation should be deemed harmless. When all of the evidence is put in proper context, there was overwhelming evidence of guilt and it was proper not to shield the jury from relevant facts showing appellant's possession of the drugs. See People v. Galloway, 54 NY2d 396, 401 (1981) ("prosecutor's characterization, in summation, of the defense's contention that the witness Cruz possessed a gun as a "smokescreen" or "a red herring" and his aspersions on the credibility of the defendant's and the witness Taylor's testimony did not exceed the broad bounds of rhetorical comment permissible in closing argument"); People v. Brosnan, 32 NY2d 254, (1973) (prosecutor's reference to defendant as a liar, an animal, a beast, that defendant should be removed from streets and that victim sustained serious injuries because she could not respond to defendant's sexual and animalistic desires, was improper but did not require reversal). C. Appellant's claim that the arresting officer's testimony on his training and experience in narcotics trafficking constituted reversible error is unpreserved for appellate review and meritless. · Appellant challenges a series of questions that were asked of Officer J anickey on his training and experience in narcotics sales. He contends that those questions and responses . denied him a fair trial by suggesting that appellant was a drug dealer. It should be noted that this argument was not raised in the intermediate appellate court. In any event, appellant's challenges are unpreserved for this Court's review. Trial counsel's first objection to the challenged questions was based on the form of these questions--not that these questions improperly implies that appellant was a drug dealer (T1.603). The prosecutor's subsequent questions on Officer's Janickey' s experience were not challenged by trial counsel--with the exception of an objection to the question of whether the arresting officer was familiar with the price of a kilogram of cocaine (Tl.604). However, the basis for the objection was relevance-not that the question improperly infers that he was a drug dealer. Because trial counsel failed to object to all the challenged questions and the objections he did make were not based on the ground presented on appeal, his claim of error is unpreserved for this Court's review. Moreover, Officer Janickey testified not just to his experience in narcotic sales but also his experience with arrests for narcotic possession (Tl.603-05). This trial involved possession of a 5 large amount of cocaine and background information on tbe arresting officer's experience witb narcotics trafficking is relevant and proper. Also, any unconceded error would have been harmless in light oftbe overwhelming evidence in support of appellant's conviction. D. 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. Altbough it was an error to elicit evidence of appellant's post-arrest silence on the prosecution's case-in-chief, such error was harmless. 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 tbat appellant had invoked his right to counsel (T3 .868)6 The prosecutor did not persist witb this line of questioning and he did not conunent on appellant's post -arrest silence in his opening statement or in his sununation. Thus, there is no reasonable possibility tbat this one-time reference of appellant's post-arrest silence might have contributed to his conviction because of the overwhelming evidence in support of appellant's guilt. E. Appellant's claim that his due process right was violated at sentencing is meritless. Appellant argues that his case should be remanded for a new sentence because the prosecutor made improper references tbat he was drug trafficker at the sentence proceeding. The record, however, shows "that appellant's sentence is fully supported by the facts underlying his conviction. The record shows tbat tbe trial court disregarded any references to appellant as a cocaine dealer. The court specifically stated tbat appellant was never indicted for sale nor was he indicted for possession with intent to sell (S.13).7 The court properly considered appellant's age, criminal history, presentence investigation report, amount of cocaine tbat appellant was in possession and arguments from botb counsels in determining tbe 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 tbe reconunendation of tbe District Attorney's Office should be considered). Witb all tbese factors in mind, tbe court properly sentenced appellant to 10 years incarceration witb 5 years of post-release supervision (S.14). Conclusion Appellant was not deprived of a fair trial because the jury's resolution of tbe credibility issues in this case in no way depended on any inference that defendant sold drugs. To tbe extent tbat tbe evidence supported appellant's active handling of tbe packaged drugs, such was relevant to rebut appellant's version of what transpired and to show his knowledge about tbe drugs seized from his own vehicle. The credible testimony and physical evidence adduced at trial 6 Trial counsel did not want a curative instruction because he felt it would draw more attention to the testimony (T3.870-71, 911). 7 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. 6 overwhelmingly supports· the j ury's finding of guilt-as noted by the dissent in the intermediate appellate court. As such, appellant's judgment of conviction should be affirmed. DATED: January 9, 2017 . Riverhead, New York Assistant District Attorney 7 Certificate Of Compliance With N.Y. Ct. Rules §SOO.ll(m) LAUREN TAN, an attorney duly admitted to practice in the courts of this State and of counsel to THOMAS J. SPOTA, District Attorney of Suffolk County, attorney of record for Respondent in this case, certifies that the within letter submis · n on the merits contains 2,896 words, excluding the certificate of compliance and proof of serv' e. Assistant District Attorney AFFIDAVIT OF SERVICE STATE OF NEW YORK) ) SS: COUNTY OF SUFFOLK) KRYSTINA MOORE, being duly sworn, deposes and says: That on the 9th day of January, 2017, I served one (1) copy of the within Letter Brief upon the defendant, JULIO PEGUERO-SANCHEZ, by Express Mail, through their attorney, Stephen N. Preziosi, ESQ., by depositing a true copy of same enclosed in a postpaid wrapper in the official depository maintained and controlled by the United States Postal Service, at Criminal Courts Building, 200 Center Ddve, Riverhead, New York 11901, directed to said defendanfs attorney at 48 Wall Street, 5th Floor, New York, New York 10005, the address designated by the attorney or the place where they then kept an office. Deponent is over the age of eighteen (18) years. Sworn to before me this 9th day of Januacy, 2017. THOMAS C. CC~Ht=LLO Notary Public, State o~ New York Registration #02CC 0036155 Qualified In S\Jffo!r: County Commission Explres Nc•n;_r_<.lt~ er 21. 2018