| People v Vargas |
| 2010 NY Slip Op 02680 [72 AD3d 1114] |
| April 1, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Dimas Vargas, Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Hannah Stith Long of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered June 30, 2006, convicting defendant following a nonjury trial of the crimes ofconspiracy in the fourth degree, criminal sale of a controlled substance in the third degree (11counts), criminal possession of a controlled substance in the third degree (13 counts) andcriminal possession of a controlled substance in the fourth degree (three counts).
During the course of a coordinated undercover investigation, the Community NarcoticsEnforcement Team (hereinafter CNET) of the State Police received information from aconfidential informant that defendant and his cohorts were supplying and distributing cocaine inthe City of Binghamton, Broome County. Following eight controlled buys by the confidentialinformant, CNET investigators obtained eavesdropping warrants on two telephones, including acellular telephone used by defendant, pursuant to which they intercepted and recorded hundredsof telephone conversations between defendant and codefendants and conducted surveillance oftheir activities. Pursuant to a search warrant, police thereafter effectuated a traffic stop ofdefendant's vehicle that resulted in the seizure of 103 grams of cocaine and his arrest.
Based primarily upon the telephone conversations recorded during the eavesdroppingsurveillance period, defendant was indicted, along with five other individuals, and charged withconspiracy and various drug-related offenses. Following a hearing, defendant's motions to [*2]suppress all evidence obtained through the telephoneeavesdropping and search warrants were denied by County Court. At the ensuing nonjury trial,the People's theory was that defendant was the leader of a cocaine selling operation wherein hewould procure quantities of cocaine from New York City, transport the cocaine to BroomeCounty for distribution, receive orders from potential buyers via cellular telephone and then callone of his codefendants to prepare, package and/or deliver the cocaine to said buyers at variouslocations along the streets of Binghamton. Defendant was ultimately convicted of 11 counts ofcriminal sale of a controlled substance in the third degree, 13 counts of criminal possession of acontrolled substance in the third degree, three counts of criminal possession of a controlledsubstance in the fourth degree, and conspiracy in the fourth degree. He was sentenced, as asecond felony offender, to an aggregate prison term of 14 years to be followed by three years ofpostrelease supervision.[FN1]
We reject defendant's assertion that the search warrant was not supported by probable causebecause the reliability of the confidential informant had not been established. There is "no oneacid test of reliability," and a confidential informant may be considered reliable if he or she "hascome forward with accurate information in the past[,] . . . makes a statement underoath or where details of his [or her] story have been confirmed by police observation"(People v Rodriguez, 52 NY2d 483, 489 [1981] [citations omitted]; see People v Alston, 1 AD3d 627,628 [2003], lv denied 1 NY3d 594 [2004]). Here, the sworn allegations in the policeaffidavits supporting the application, which detailed eight controlled buys of cocaine made bythe confidential informant from defendant under police supervision and surveillance shortlybefore the issuance of the warrant, sufficiently established the confidential informant's reliability(see People v Morton, 288 AD2d 557, 558 [2001], lv denied 97 NY2d 758[2002], cert denied 537 US 860 [2002]; People v Young, 249 AD2d 576, 579[1998], lv denied 92 NY2d 906 [1998]).
We agree with the People's assertion that defendant's challenge to the legal sufficiency of theevidence is unpreserved inasmuch as he presented evidence after his unsuccessful motion todismiss and failed to renew the motion at the close of all proof (see People v Lane, 7 NY3d 888,889 [2006]; People v Hines, 97 NY2d 56, 62-63 [2001]).[FN2]Nevertheless, since defendant [*3]also attacks the verdict asagainst the weight of the evidence, we will consider the evidence adduced as to each of theelements of the challenged crimes in the context of that review (see People v Loomis, 56 AD3d1046, 1046-1047 [2008]).
First, with respect to certain of his convictions for criminal possession of a controlledsubstance, defendant argues that the People failed to prove that he had a possessory interest orcontrol over the cocaine stored at codefendant Yolanda Matthews' home and the cocaine leftwith codefendant Ricardo Dash.[FN3]For each of the counts at issue, the People proceeded on the theory of constructive possession(see Penal Law § 10.00 [8]), which required a showing that defendant "exerciseddominion and control over the place where contraband was seized or over the person whoactually possessed the property" (People v Manini, 79 NY2d 561, 573 [1992]; see People v Echavarria, 53 AD3d859, 861 [2008], lv denied 11 NY3d 832 [2008]; People v Garcia, 30 AD3d 833, 835 [2006]).
As to the counts involving Matthews, she testified that defendant paid her rent, utilities, aportion of her medical expenses and for some of the car she owned and, in return, she storeddefendant's cocaine at her apartment and allowed him to process the powder cocaine into crackcocaine there. Matthews further explained that, at defendant's request, she would weigh andpackage cocaine for resale to defendant's customers and would deliver and/or sell the cocaine ondefendant's behalf. Recorded phone conversations intercepted pursuant to the authorized wiretap,which were corroborated by Matthews' testimony, established that on four separate days betweenJune 6, 2005 and June 16, 2005, Matthews possessed one-half ounce or more of crack cocaineand was directed by defendant to package varying quantities of the substance for sale (counts17-20, 35, 36, 38, 39). On June 17, 2005, defendant instructed Matthews to take 10 one-eighthounce packages of cocaine from Dash and to deliver them for sale to customers (counts 43, 44).With respect to counts 33 and 34 related to defendant's constructive possession of cocaine withDash, recorded conversations established that, when buyers sought to purchase cocaine fromdefendant, they would first call defendant who, in turn, would call Dash and direct him to makedeliveries at a specified location. Surveillance teams would listen to the calls and, on numerousoccasions, observed Dash appear and make the deliveries. Moreover, defendant paid Dash $25for each one-eighth ounce of cocaine he sold. As to the specific counts at issue, recordedconversations established that, moments after receiving a call from an unidentified male whowanted to purchase cocaine, defendant called Dash to inform him that he had a customer whocould not wait and that he was picking up four "books" of cocaine (totaling one-half ounce)[*4]that he had previously left with Dash. This evidenceestablished that defendant constructively possessed both the cocaine stored at Matthews'apartment and held by Dash (see People v Manini, 79 NY2d at 574-575; People vGarcia, 30 AD3d at 835).
We similarly reject defendant's challenge to the evidence supporting his convictions forcriminal sale of a controlled substance in the third degree and conspiracy in the fourth degree.The recorded telephone conversations between defendant and his codefendant customers RonaldWoodruff and Marsha Hoover, as well as the trial testimony of Matthews, Dash and CNETinvestigators, established that, with respect to each of the sale counts, defendant made "a bonafide offer to sell" indicating both the intent and the ability to proceed with the sale (People vMike, 92 NY2d 996, 998 [1998]; see Penal Law § 220.00 [1]; People vSamuels, 99 NY2d 20, 24 [2002]; People v Polanco, 50 AD3d 587, 588 [2008], lv denied 11NY3d 834 [2008]; People vCrampton, 45 AD3d 1180, 1181 [2007], lv denied 10 NY3d 861 [2008]).Turning to defendant's conviction for conspiracy in the fourth degree, the proof demonstratedthat defendant entered into an agreement with one or more of his codefendants to engage inconduct constituting a class B felony, defendant intended that conduct constituting this crime beperformed, and at least one of the members of the conspiracy performed an overt act infurtherance of this conspiracy (see Penal Law § 105.10 [1]; People v Hilliard, 49 AD3d 910,912 [2008], lv denied 10 NY3d 959 [2008]; People v Monday, 309 AD2d 977,978-979 [2003]). Contrary to defendant's contention, the trial testimony of the co-conspirators isamply corroborated by the recorded telephone conversations intercepted pursuant to theauthorized wiretap (see People v Bretti, 68 NY2d 929, 930 [1986]; People v Riggins, 28 AD3d 934,936 [2006], lv denied 6 NY3d 897 [2006]).
Although defendant stresses that he was never personally observed engaging in any directhand-to-hand sales, the numerous recorded conversations made to and from defendant's cellulartelephone overwhelmingly established his role in the cocaine selling operation. CNETInvestigator Norman O'Neil confirmed that he listened to all of the recordings and identified thevoices therein based on the repetitiveness of the calls and subsequent conversations he had withthe parties. Moreover, Matthews, Hoover and Woodruff identified their voices on the audiorecordings as well as the voices of Dash[FN4]and defendant. They also corroborated the activities on the recordings, elaborated on howdefendant's drug distribution system operated and confirmed the testimony of O'Neil regardingthe meaning of the street terms used by defendant and others on the recordings. While defendantargues that Hoover's testimony should be accorded little weight due to her admitted drug use andinability to recall all of the specific details of the individual sales to her, these issues wereexplored during the trial and presented for the factfinder's consideration, and we find nothinginherently incredible or improbable about Hoover's testimony (see People v Miles, 61 AD3d1118, 1119 [2009], lv denied 12 NY3d 918 [2009]; People v Holliman, 12 AD3d 773,775 [2004], lvs denied 4 NY3d 764, 831 [2005]). Moreover, her testimony as to the foursales at issue (counts 23, 27, 32 and 37) was corroborated by various recorded telephoneconversations between her and defendant, as well as defendant and Dash. Upon reviewing theevidence in a neutral light and according deference to County Court's assessment of thewitnesses' credibility, we find that the verdict is amply supported by the weight of the credibleevidence (see People v Vasquez, 71 AD3d 1179, 1180 [2010]; People v Rosa, 57 AD3d 1018,1020 [2008], lv denied 12 NY3d 762 [2009]).[FN5]
We next address defendant's contention that he was denied the effective assistance ofcounsel. "So long as the evidence, the law, and the circumstances of a particular case, viewed intotality and as of the time of the representation, reveal that the attorney provided meaningfulrepresentation, the constitutional requirement will have been met" (People v Baldi, 54NY2d 137, 147 [1981] [citations omitted]; accord People v Henry, 95 NY2d 563, 565[2000]; People v Brown, 62 AD3d1089, 1091 [2009], lv denied 13 NY3d 742 [2009]).
Defendant advances several arguments with respect to this claim. First, defendant faultscounsel for failing to request a Darden hearing to test the reliability of the confidentialinformant. However, he has failed to demonstrate the absence of a legitimate explanation forcounsel's decision in this regard (see People v Rivera, 71 NY2d 705, 709 [1988]), and amere disagreement with counsel's trial strategy or tactics does not render assistance ineffective(see id. at 708-709; People vMabry, 27 AD3d 835, 837 [2006]). Given the other, albeit unsuccessful, strategiesemployed by counsel to gain suppression of the fruits of the warrants, we will not second-guesscounsel's decision not to request a Darden hearing (see People v Rivera, 71NY2d at 709; People v Smith, 301 AD2d 671, 673 [2003], lv denied 99 NY2d658 [2003]; People v Abernathy, 175 AD2d 407, 409 [1991], lv denied 78 NY2d1073 [1991]). In any event, County Court made the specific finding that the confidentialinformant was reliable and that there was probable cause supporting both the search andeavesdropping warrants.
Defendant also urges that counsel should have sought dismissal of the indictment on theground that the grand jury heard allegedly prejudicial testimony about his prior bad acts, yet hehas failed to demonstrate that the remaining evidence before the grand jury would have beeninsufficient to support the indictment (see People v Maye, 18 AD3d 1026, 1028 [2005], lv denied5 NY3d 808 [2005]; see generally People v Huston, 88 NY2d 400, 409 [1996]). Nor cancounsel be deemed ineffective for failing to seek dismissal of the allegedly multiplicitous countsin the indictment. Even assuming that this contention would have been found meritorious, theonly remedy would be dismissal of the repetitive count or counts, which would have had nopractical effect upon defendant's punishment since he received concurrent sentences on thecounts at issue (see People vThompson, 34 AD3d 931, 932 [2006], lv denied 7 NY3d 929 [2006]; Peoplev Morey, 224 AD2d 730, 731 [1996], lv denied 87 NY2d 1022 [1996]; see alsoPeople v Brandel, 306 AD2d 860, 860-861 [2003]).
Further, the replacement of defendant's attorney two months prior to the scheduledcommencement of the trial does not support defendant's claim that he was denied the effectiveassistance of counsel. Tellingly, counsel obtained dismissal of three counts prior to jurydeliberations as well as a not guilty verdict on a fourth count. Viewed in its entirety, the recordreveals that defendant was provided with meaningful representation by trial counsel (seePeople v Benevento, 91 NY2d 708, 712 [1998]; People v Black, 65 AD3d 811, 815 [2009], lv denied 13[*5]NY3d 905 [2009]). Further, "[b]ecause our state standard. . . offers greater protection than the federal test" and the state standard wassatisfied, defendant's claim of ineffectiveness under the US Constitution must also fail (People v Caban, 5 NY3d 143, 156[2005]; see People v Ramos, 48AD3d 984, 988 [2008], lv denied 10 NY3d 938 [2008], cert denied 556 US—, 129 S Ct 1595 [2009]).
Finally, addressing defendant's claim that his 14-year sentence is harsh and excessive, wefind neither a clear abuse of discretion nor the existence of any extraordinary circumstanceswarranting a reduction of the sentence in the interest of justice (see CPL 470.15 [3] [c];[6] [b]; People v Elliot, 57 AD3d1095, 1097 [2008], lv denied 12 NY3d 783 [2009]; People v Rollins, 51 AD3d 1279,1282-1283 [2008], lv denied 11 NY3d 922 [2009]). Further, "[t]he mere fact that asentence imposed after trial is greater than that offered in connection with plea negotiations isnot proof that defendant was punished for asserting his right to trial" (People v Simon,180 AD2d 866, 867 [1992], lv denied 80 NY2d 838 [1992]; accord People v Beauharnois, 64AD3d 996, 1001 [2009], lv denied 13 NY3d 834 [2009]). We find no support in therecord that the sentence imposed was based upon any such vindictiveness; rather, it was basedupon, among other appropriate considerations, defendant's extensive criminalhistory—which included two other convictions for similar drug-relatedactivity—and the sheer quantity and frequency with which defendant was traffickingcocaine into Broome County for distribution (see People v Burroughs, 64 AD3d 894, 898-899 [2009], lvdenied 13 NY3d 794 [2009]; People v Richardson, 28 AD3d 1002, 1005 [2006], lvdenied 7 NY3d 817 [2006]).
Defendant's remaining ascriptions of error, including those raised in his pro se brief, havebeen fully reviewed and found lacking in merit.
Cardona, P.J., Spain, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: This sentence was ordered torun consecutively to the 16-year prison term that defendant received following his conviction forcrimes charged in an unrelated indictment. This Court affirmed defendant's conviction in thatmatter in a separate appeal (People vVargas, 60 AD3d 1236 [2009], lv denied 13 NY3d 750 [2009]).
Footnote 2: Notably, there is a lack ofunanimity among the Departments concerning the manner by which a legal sufficiency claim isproperly preserved under these circumstances (see e.g. People v Squires, 68 AD3d 900, 900 [2d Dept 2009]; People v Beriguete, 51 AD3d 939,940 [2d Dept 2008], lv denied 11 NY3d 734 [2008]; People v Cooper, 67 AD3d 1254, 1255 [3d Dept 2009]; People v Camerena, 42 AD3d814, 815 [3d Dept 2007], lv denied 9 NY3d 921 [2007]; People v Lombardi, 68 AD3d1765, 1766 [4th Dept 2009]; People v Parks, 66 AD3d 1429, 1429 [4th Dept 2009]; People v Laing, 66 AD3d 1353,1354 [4th Dept 2009], lv denied 13 NY3d 908 [2009]).
Footnote 3: Defendant's challengeencompasses his conviction on 10 counts of criminal possession of a controlled substance in thethird degree. As for the cocaine stored at Matthews' apartment, defendant was convicted of fourcounts on the theory that he knowingly possessed the cocaine with the intent to sell (seePenal Law § 220.16 [1]) and four counts on the basis that he possessed one-half ounce ormore of cocaine (see Penal Law § 220.16 [12]). Regarding the cocaine held byDash, defendant was convicted of one count each of possession with intent to sell (seePenal Law § 220.16 [1]) and possession of one-half ounce or more of cocaine (seePenal Law § 220.16 [12]).
Footnote 4: Dash, who was unable to beproduced, was the only codefendant who did not testify at trial.
Footnote 5: Defendant's contention that theguilty verdicts on counts 45 and 46 are inconsistent with, or repugnant to, his acquittal on count47 is unpreserved for our review (see People v Alfaro, 66 NY2d 985, 987 [1985]). So toois his suggestion that certain counts of the indictment were multiplicitous (see People v Thompson, 34 AD3d931, 932 [2006], lv denied 7 NY3d 929 [2006]).