Drug dealer’s sentence upheld

ALBANY — The Appellate Division of state Supreme Court last week affirmed a Fulton County Court jury conviction and 15-year sentence of Gloversville cocaine dealer Anthony M. aka “Smurf” Smith.

Smith, 34, formerly of 105 N. Arlington Ave., appealed his Aug. 21, 2014 Fulton County Court conviction on felony counts of third-degree criminal sale of a controlled substance and third-degree criminal possession of a controlled substance. As a second felony offender, he received 15 years in state prison, with three years of post-release supervision.

Gloversville police at the time said Smith sold cocaine to a confidential informant in a controlled buy on John Street at 4:18 p.m. Nov. 6, 2013. Smith was on parole for a previous conviction at the time he made the drug sale. Police said Smith — identified as a “mid-level” drug dealer and member of the Bloods street gang — was charged after found driving a rental car without a valid driver’s license.

He was initially charged with aggravated unlicensed operation of a motor vehicle, a misdemeanor.

The Appellate Court decision notes Smith argued County Court erred in determining a hearing requested was unnecessary to determine whether a confidential informant’s identification of defendant was merely confirmatory.

Appellate judges also said they were “unpersuaded” by defendant’s argument that County Court erred in allowing the prosecution to refer to him by his nickname, Smurf.

“Defendant’s nickname was not inherently prejudicial and several witnesses at trial testified that they knew defendant exclusively under that nickname. Based on the foregoing and given that defendant’s nickname was probative of his identity, County Court did not abuse its discretion in permitting the People to use defendant’s nickname,” the decision stated.

The court also affirmed use of certain evidence for its “probative value” at trial.

With respect to evidence, a confidential informant previously gave Smith $200 to purchase crack cocaine from him, and “defense counsel opened the door to such evidence by continuously referring to this $200 sum in his opening statement and commenting that the exchange would ‘become important later,'” the decision said.

Smith claimed he received ineffective assistance from counsel, but appellate judges said it was incumbent upon the defendant to show that his attorney “failed to provide meaningful representation and the absence of strategic or other legitimate explanations for counsel’s allegedly deficient conduct.”

“There can be no denial of effective assistance of trial counsel arising from counsel’s failure to make a motion or argument that has little or no chance of success,” the court responded.

Contrary to Smith’s assertion, his counsel’s failure to request a missing witness charge did not amount to ineffective assistance given that “defendant has not shown that the [witness] was in the people’s control or that [the witness] would have provided material, noncumulative testimony,” judges ruled. The court also rejected the defendant’s contention his counsel was ineffective by failing to move for a mistrial after two witnesses gave misleading testimony inasmuch as corrective measures were taken to remedy any inaccuracies, judges said.

Smith claimed the prosecution committed a violation over evidence, but the court said it is without merit because the record doesn’t indicate the requested evidence even existed.

“Defendant’s argument that County Court denied him his right to a fair and public trial when it excluded his fiance from the court room is unpreserved in the absence of a timely objection … Even if adequately preserved, defendant’s Sixth Amendment right to a public trial was not violated,” the decision stated.

Michael Anich covers Johnstown and Fulton County news. He can be reached at manich@leaderherald.com.

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