State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 23, 2015 105521 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

ANDRE HAWKINS,

Appellant.

________________________________

Calendar Date: June 5, 2015

Before: McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.

__________

Alexander W. Bloomstein, Hillsdale, for appellant.

D. Holley Carnright, District Attorney, Kingston (Joey

Drillings of counsel), for respondent.

__________

Egan Jr., J.

Appeal from a judgment of the County Court of Ulster County

(Williams, J.), rendered July 27, 2012, upon a verdict convicting

defendant of the crimes of criminal sale of a controlled

substance in the third degree (two counts) and criminal

possession of a controlled substance in the third degree (two

counts).

In April 2011, as the result of an investigation by the

Ulster Regional Gang Enforcement Narcotics Team (hereinafter

URGENT), defendant was indicted and charged with two counts of

criminal sale of a controlled substance in the third degree and

two counts of criminal possession of a controlled substance in

the third degree. The charges stemmed from two separate and

targeted buys in April 2010, wherein defendant sold narcotics to
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an undercover officer assigned to URGENT and working in

conjunction with a confidential informant (hereinafter CI). 

Although a warrant for defendant's arrest was issued in April

2011, he was not apprehended until he turned himself in to

authorities in October 2011. Following defendant's arraignment,

defense counsel moved to dismiss the indictment upon statutory

speedy trial grounds, contending, among other things, that the

People failed to exercise due diligence in locating defendant. A

hearing ensued, at the conclusion of which County Court found

that the People had satisfied their due diligence obligation; as

a result, the 200 days that elapsed between the filing of the

indictment in April 2011 and the People's statement of readiness

in October 2011 were not chargeable to the People, and

defendant's speedy trial motion was denied.

The matter proceeded to trial, at which time both the

undercover officer and defendant, among others, appeared and

testified as to the underlying drug transactions. Defendant was

convicted as charged and thereafter was sentenced, as a second

felony offender, to concurrent prison terms of 10 years followed

by three years of postrelease supervision. This appeal by

defendant ensued.

We affirm. Initially, we find no merit to defendant's

claim that County Court erred in denying his speedy trial motion. 

Inasmuch as defendant was charged with felony offenses, the

People were required to be ready for trial within six months (see

CPL 30.30 [1] [a]). "In computing the time within which the

People must be ready for trial, the court must exclude 'the

period of delay resulting from the absence or unavailability of

the defendant'" (People v Devore, 65 AD3d 695, 696 [2009],

quoting CPL 30.30 [4] [c] [i]). For purposes of the statute, and

insofar as is relevant here, "[a] defendant must be considered

absent whenever his [or her] location is unknown and . . . [such]

location cannot be determined by due diligence" (CPL 30.30 [4]

[c] [i]; see People v Devino, 110 AD3d 1146, 1148 [2013]). "The

determination of whether the People have exercised due diligence

in locating a person is a mixed question of law and fact" (People

v Grey, 259 AD2d 246, 248 [1999], lv denied 94 NY2d 880 [2000]

[citation omitted]), and "[w]hile minimal attempts to locate a

defendant and secure his [or her] presence in court will not
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satisfy the due diligence standard, the police are not obliged to

search for a defendant indefinitely as long as they exhaust all

reasonable investigative leads as to his [or her] whereabouts"

(People v Delaronde, 201 AD2d 846, 847-848 [1994]; accord People

v Petrianni, 24 AD3d 1224, 1224 [2005]; see People v Devino, 110

AD3d at 1148-1149).

Here, there is no dispute that 200 days elapsed between the

filing of the indictment in April 2011 and the People's

declaration of readiness in October 2011, and the record makes

clear that defendant's whereabouts were unknown to law

enforcement officials during this time period. Hence, the issue

distills to whether the People exercised due diligence in

attempting to locate defendant. In this regard, a detective with

the City of Kingston Police Department in Ulster County who, in

turn, was assigned to URGENT, testified that, immediately after

the warrant for defendant's arrest was issued, he reached out to

the CI who had participated in the underlying drug transactions

in an effort to obtain an address or phone number for defendant. 

When that effort proved to be unsuccessful, the detective ran

defendant's criminal history report and obtained a former address

for defendant in the City of Schenectady, Schenectady County. 

Within one week of the issuance of the arrest warrant, the

detective contacted the City of Schenectady Police Department and

asked that they check the address in question.

When a check of the Schenectady County address failed to

locate defendant, the detective entered defendant's arrest

warrant into the New York State Police Information Network

database in May 2011, a nationwide database of active arrest

warrants. The detective further testified that, in July 2011, a

fellow URGENT member ran a "comprehensive report" through another

law enforcement database in an effort to obtain a list of

defendant's last known addresses. Based upon the results of this

search and information obtained from another informant,1 the

detective obtained an address for defendant in the City of

1 Throughout this time period, the detective also reached

out to other informants in an effort to ascertain defendant's

whereabouts.
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Poughkeepsie, Dutchess County and again requested that local law

enforcement check the location provided. When that effort

failed, the detective reached out to a fellow URGENT member who,

in September 2011, put him in touch with the United States

Marshals Service in the City of Albany. In October 2011, the

Marshals Service was able to locate and contact defendant's

"significant other," who relayed a message to defendant. Shortly

thereafter, defendant turned himself in to the authorities.

In light of the foregoing efforts, it cannot be said that

"the authorities shirked their continuing obligation of due

diligence" (People v Marrin, 187 AD2d 284, 286 [1992], lv denied

81 NY2d 843 [1993]; accord People v Petrianni, 24 AD3d at 1225). 

Although defendant averred that he was "living openly" and

receiving mail at a particular address during the relevant time

period and faults the People and law enforcement for failing to

check his Social Security number against the records of various

governmental agencies, counsel conceded at oral argument that

defendant's name was not on the lease for the premises, and the

record is devoid of proof that defendant registered that address

with any entity, including the United States Postal Service, the

Department of Motor Vehicles, the Department of Labor and/or

state and federal taxing authorities (compare People v Devino,

110 AD3d at 1149; People v Devore, 65 AD3d at 697). Under these

circumstances, we are satisfied that the People discharged their

due diligence obligation – even if "greater efforts could have

been undertaken" (People v Grey, 259 AD2d at 249). Accordingly,

defendant was not deprived of his statutory right to a speedy

trial.

Nor are we persuaded that County Court erred in permitting

the People to amend the indictment. CPL 200.70 (1) provides, in

relevant part, that "[a]t any time before or during trial, the

court may, upon application of the [P]eople and with notice to

the defendant and opportunity to be heard, order the amendment of

an indictment with respect to defects, errors or variances from

the proof relating to matters of form, time, place, names of

persons and the like, when such an amendment does not change the

theory or theories of the prosecution as reflected in the

evidence before the grand jury which filed such indictment, or

otherwise tend to prejudice the defendant on the merits." Here,
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during the course of jury selection, County Court granted the

People's oral motion to amend the indictment to reflect that

defendant sold (count 3) and/or possessed (count 4) cocaine as

opposed to heroin. The subject amendment did not alter the

People's theory of the case but, rather, appears to have been

required simply to correct a clerical error in the indictment. 

Additionally, we discern no prejudice to defendant as a result of

the amendment. Notably, the People's pretrial discovery

response, as well as the grand jury minutes, reflected that the

substance forming the basis for the charges outlined in counts 3

and 4 of the indictment was cocaine. Under these circumstances,

County Court did not err in permitting the amendment (see People

v Bausano, 122 AD3d 1341, 1341 [2014], lv denied 25 NY3d 1069

[2015]; People v Monday, 309 AD2d 977, 980 [2003]; People v

Pacheco, 280 AD2d 685, 686 [2001], lv denied 96 NY2d 905 [2001];

see also People v Hall, 125 AD3d 1095, 1096 [2015]; People v

Cruz, 61 AD3d 1111, 1112 [2009]).

Although defendant's challenge to the legal sufficiency of

the evidence has not been preserved for our review, "our weight

of the evidence analysis necessarily involves an evaluation of

whether all elements of the charged crimes were proven beyond a

reasonable doubt at trial" (People v Pine, 126 AD3d 1112, 1114

[2015] [internal quotation marks, brackets and citations

omitted]; see People v Colburn, 123 AD3d 1292, 1292 n [2014], lv

denied 25 NY3d 950 [2015]). Insofar as is relevant here, "[a]

person is guilty of criminal sale of a controlled substance in

the third degree when he [or she] knowingly and unlawfully sells

. . . a narcotic drug" (Penal Law § 220.39 [1]), and "[a] person

is guilty of criminal possession of a controlled substance in the

third degree when he [or she] knowingly and unlawfully possesses

. . . a narcotic drug with intent to sell it" (Penal Law § 220.16

[1]). The crux of defendant's argument on appeal is that it is

"impossible" to discern – from the audio/video recordings of the

two transactions – whether the drugs at issue were sold by

defendant or the CI. Defendant's argument on this point,

however, ignores the fact that there was a third person present

for the transactions at issue – namely, the undercover officer

who actually purchased the drugs and positively identified

defendant as the seller.
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The record reflects that arrangements were made through the

CI for the undercover officer to make a controlled drug purchase

from defendant at the Kingston Plaza parking lot in Kingston. 

The undercover officer, who had been shown a photograph of

defendant and was equipped with a body wire, drove to the

appointed location in an unmarked vehicle and waited for the CI

and defendant to arrive. After a car driven by the CI pulled up

next to the undercover officer's vehicle, the undercover officer

exited and entered the back seat of the CI's car. Following a

brief conversation, the front-seat passenger – a black male that

the undercover officer later positively identified as defendant –

handed the undercover officer 10 glassine envelopes of a

substance that subsequently tested positive for heroin in

exchange for $120 in prerecorded buy money. The undercover

officer then indicated to defendant and the CI that, if they were

going to be around, she might have additional funds to purchase

more drugs – specifically, crack cocaine. After exiting the CI's

vehicle, the undercover officer returned to a predetermined

location and turned over the heroin that she had purchased from

defendant.

Within minutes, a phone call was placed to the CI and a

second controlled buy was arranged. The undercover officer,

still wearing a body wire, returned to the shopping plaza and

awaited the arrival of the CI and defendant. As with the

previous transaction, the undercover officer exited her vehicle

and entered the back seat of the CI's vehicle, at which point

defendant handed the undercover officer four small, clear plastic

"twists" of a substance later determined to be crack cocaine in

exchange for $80 in prerecorded buy money. The undercover

officer again returned to a predetermined location, relinquished

the drugs in question and, as with the prior transaction,

positively identified defendant as the individual from whom she

had purchased the drugs. Both transactions were recorded by

members of URGENT, and audio/video recordings of these

transactions were entered into evidence at trial.

Although defendant readily admitted to being present for

the subject sales, he insisted that the actual drug transactions

occurred between the CI and the undercover officer. This

conflicting testimony, however, presented a credibility issue for
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the jury to resolve (see People v Toye, 107 AD3d 1149, 1151

[2013], lv denied 22 NY3d 1091 [2014]). Accordingly, "[w]hile a

different verdict would not have been unreasonable, viewing the

evidence in a neutral light and giving due deference to the

jury's credibility determinations, we cannot say that the jury

failed to accord the evidence the weight that it deserved"

(People v Pine, 126 AD3d at 1115-1116; see People v Richards, 124

AD3d 1146, 1146-1147 [2015], lv denied 25 NY3d 992 [2015]).

Finally, defendant contends that he was denied the

effective assistance of counsel – a claim that is premised, in

large measure, upon counsel's decision to question defendant on

direct examination regarding his prior criminal history, which

ultimately resulted in counsel eliciting information beyond the

scope of County Court's prior – and favorable – Sandoval ruling. 

"To succeed on an ineffective assistance claim, a defendant must

prove that trial counsel failed to provide meaningful

representation. . . . In addition, even if a defendant shows that

the lawyer erred, a defendant must further demonstrate the

absence of strategic or other legitimate explanations for the

error" (People v Baker, 14 NY3d 266, 270-271 [2010] [internal

quotation marks and citations omitted]; see People v Wheeler, 124

AD3d 1136, 1138-1139 [2015], lv denied 25 NY3d 993 [2015]).

Based upon our review of the record as a whole, we are

satisfied that defendant received meaningful representation. 

Trial counsel engaged in appropriate pretrial motion practice,

including filing a motion to dismiss the indictment upon

statutory speedy trial grounds, made cogent opening and closing

statements, strongly cross-examined the People's witnesses,

registered appropriate objections and arguments throughout the

course of the trial and advanced a plausible defense – namely,

that it was the CI, who died prior to trial, who actually sold

the drugs to the undercover officer on the day in question. 

Consistent with that theory, defense counsel elicited testimony

regarding the CI's criminal background, the fact that the CI was

paid for his services in connection with the underlying

transactions and that, contrary to routine procedures, he was not

searched for contraband prior to the controlled purchases at

issue.
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Although defense counsel indeed questioned defendant

regarding his prior criminal history, thereby admittedly opening

the door for further exploration by the People on this point, the

record makes clear that this was an intentional, tactical

decision on the part of counsel. Specifically, counsel's

strategy was designed to show that, while defendant did have a

prior history of drug use and drug-related convictions,

defendant, who last sold drugs in 1992 and last used drugs in

1998, was a recovering addict who no longer sold drugs to support

his habit. Upon reviewing both the colloquy between defense

counsel and County Court and counsel's summation, it is apparent

that counsel was endeavoring to portray defendant as a man who

had seen the error of his ways (at least as far as drugs were

concerned) and, hence, it was far more likely that it was the CI

– and not defendant – who had sold the drugs to the undercover

officer. Even assuming that this strategy was – upon further

reflection – ill advised, "a simple, hindsight disagreement with

trial tactics or strategy is insufficient to establish a lack of

meaningful representation" (People v Underdue, 89 AD3d 1132, 1134

[2011], lv denied 19 NY3d 969 [2012]). Defendant's remaining

contentions, including his assertion that the sentence imposed is

harsh and excessive, have been examined and found to be lacking

in merit.

McCarthy, J.P., Lynch and Devine, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court