| People v Barnes |
| 2019 NY Slip Op 04998 [173 AD3d 565] |
| June 20, 2019 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| The People of the State of New York,
Respondent, v Tommy Barnes, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Taylor L. Napolitano of counsel), for appellant.
Tommy Barnes, appellant pro se.
Cyrus R. Vance, Jr., District Attorney, New York (Jonathon Krois of counsel), for respondent.
Judgment, Supreme Court, New York County (Juan M. Merchan, J. at suppression motion; Robert M. Stolz, J. at motion in limine; Edward J. McLaughlin, J. at jury trial and sentencing), rendered June 28, 2016, convicting defendant of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a term of 15 years, unanimously affirmed.
Defendant's suppression motion was properly denied, and the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]). There is no basis for disturbing the credibility determinations made by the suppression court or the jury. We do not find that defendant's acquittal of a sale charge undermines the weight of the evidence supporting the possession conviction (see People v Rayam, 94 NY2d 557 [2000]; People v Johnson, 73 AD3d 578, 580 [1st Dept 2010], lv denied 15 NY3d 893 [2010]).
The court providently exercised its discretion in denying defense counsel's motion in limine seeking to cross-examine a police witness based on a federal action against him and other officers that had been settled without any admission of wrongdoing. Defendant failed to identify "specific allegations that are relevant to the credibility of the law enforcement witness" (People v Smith, 27 NY3d 652, 662 [2016]). The federal "complaint did not allege, or even support an inference, that [the witness] personally engaged in any specific misconduct or acted with knowledge of the misconduct of other officers" (id. at 663 [internal quotation marks omitted]; see also People v Smith, 171 AD3d 523 [1st Dept 2019]). Moreover, the in limine motion court conducted an inquiry that revealed that in the incident giving rise to the federal lawsuit the witness merely signed paperwork at the station house after other officers had made the allegedly improper arrest elsewhere, outside the witness's presence (see People v Cepeda, 158 AD3d 468, 469 [1st Dept 2018], lv denied 31 NY3d 1080 [2018]).
Defendant did not preserve his challenges to the court's main and supplemental jury charges, and we decline to review them in the interest of justice. As an alternative holding, we find that the court's permissive charge on intent did not shift the burden of proof (see People v Getch, 50 NY2d 456 [1980]) and that the charge under Allen v United States (164 US 492 [1896]) was not coercive (see People v James, 135 AD3d 602 [1st Dept 2016], lv denied 27 NY3d 1070 [2016]).
Defendant's absence from a discussion between the court and the attorneys of a jury note seeking clarification about the elements of certain counts was not reversible error, because this was "a purely legal matter about which defendant could not have provided meaningful input" (People v Peters, 166 AD3d 500, 502 [1st Dept 2018], lv denied 33 NY3d 980 [2019]).
We have considered and rejected the arguments raised in defendant's pro se supplemental brief.
We perceive no basis for reducing the sentence. Concur—Friedman, J.P., Richter, Kahn, Singh, JJ.