| People v Portis |
| 2015 NY Slip Op 05219 [129 AD3d 1300] |
| June 18, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJamel Portis, Also Known as Flame, Appellant. |
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
Eric T. Schneiderman, Attorney General, New York City (Nikki Kowalski ofcounsel), for respondent.
Devine, J. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedApril 11, 2012 in Albany County, upon a verdict convicting defendant of the crime ofconspiracy in the second degree.
Numerous individuals were charged in a 12-count indictment with offensesstemming from their purported participation in a narcotics distribution ring. The solecount pertaining to defendant alleged that he and 14 others committed the crime ofconspiracy in the second degree. Defendant's trial was severed from that of thecodefendants and, following a jury trial, he was convicted as charged. Supreme Courtadjudicated defendant to be a second felony offender and sentenced him to a prison termof 10 to 20 years. Defendant now appeals.
We affirm. Defendant first argues that Supreme Court erred in admitting, over hisobjections, statements made by his alleged coconspirators. Inasmuch as each participantis deemed responsible for the acts and declarations of the others engaged in a conspiracy,"any declaration by a conspirator made during the course of and in furtherance of theconspiracy is admissible against a coconspirator as an exception to the hearsay rule"(People v Salko, 47 NY2d 230, 237 [1979]; see People v Caban, 5 NY3d 143, 148 [2005]; People vBac Tran, 80 NY2d 170, 179 [1992]). The People may not rely upon that evidence,however, without "showing that a prima facie case of conspiracy has been established"(People v Bac Tran, 80 NY2d at 179). [*2]Therefore, the People were obliged to produce otherwiseadmissible "proof 'of an agreement to commit a crime and an overt act towards carryingout that agreement' " (People v Nicholas, 118 AD3d 1183, 1184 [2014], lvdenied 24 NY3d 1122 [2015], quoting People v Cancer, 16 AD3d 835, 839 [2005], lvdenied 5 NY3d 826 [2005]; see People v Berkowitz, 50 NY2d 333, 341[1980]).
Supreme Court correctly determined that the People met this burden. The indictmentalleged that the individuals named therein as the coconspirators had agreed to commitseveral offenses, but criminal sale of a controlled substance in the second degree was theonly underlying crime charged to the jury at defendant's trial. The People, as such, wererequired to show that defendant was part of a conspiracy to "knowingly and unlawfullysell[ ] . . . a narcotic drug . . . of an aggregate weight ofone-half ounce or more" (Penal Law § 220.41 [1]). Extensive electronic andphysical surveillance was conducted as part of the investigation into the trafficking ring,and defendant made statements in recorded telephone conversations that "could bereceived in evidence as party admissions" (People v Caban, 5 NY3d at 151 n).Defendant specifically engaged in a telephone conversation on April 18, 2010 in whichhe agreed to meet several of his alleged coconspirators and bring his "paperwork" to themeeting.[FN1]While defendant was in transit to the meeting, a coconspirator received several telephonecalls and made admissible statements "relevant not for [their] truth, but rather as evidenceof an agreement to commit the underlying crime" (People v Caban, 5 NY3d at149; see People v Salko, 47 NY2d at 239). That coconspirator, in particular,agreed to sell a half-ounce of cocaine to a customer who would arrive in a distinctivevehicle. An investigator further testified that he observed the arrival of defendant andother coconspirators at the meeting site, as well as the subsequent arrival of the customerand activity consistent with the agreed-upon cocaine sale. Although circumstantial, thisevidence was sufficient to make out a prima facie case against defendant (see People v Hudson, 90 AD3d437, 438 [2011], lv denied 19 NY3d 974 [2012]; People v Silva, 237AD2d 216, 216 [1997], lv denied 89 NY2d 1100 [1997]).
Defendant next contends that the verdict was against the weight of theevidence.[FN2] Asnoted above, a coconspirator sold a half-ounce of cocaine to a customer during a meetingattended by defendant. Indeed, defendant was invited to attend several meetings with thecoconspirators and participated in telephone calls regarding their operations. The recordcontains evidence documenting several large purchases of narcotics by the coconspiratorsintended for resale, including a May 2010 purchase of over a half-ounce of cocaine bydefendant. Further, [*3]other intercepted telephone callsand physical surveillance reflected that defendant's coconspirators attempted to or didsell over a half-ounce of narcotics to customers on more than one occasion. It is far fromclear that an acquittal would have been a reasonable outcome given this proof (see People v Romero, 7 NY3d633, 643 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]). In any case,according due deference to the credibility determinations of the jury, we cannot say thatits verdict is against the weight of the evidence (see People v Romero, 7 NY3d at643-644; People vCalderon, 55 AD3d 321, 322 [2008]; People v Rojas, 281 AD2d 294,294 [2001], lv denied 96 NY2d 834 [2001]).
Defendant also challenges the propriety of the Molineux ruling made bySupreme Court, which permitted the use of wiretap evidence documenting defendant'sattendance at meetings with his coconspirators and the contemplated robbery of a drugsupplier. Because the indictment provided extensive detail as to the scope and nature ofthe charged conspiracy, however, evidence of related overt acts was properly admitted"even though they amount[ed] to uncharged crimes" (People v Snagg, 35 AD3d 1287, 1288 [2006], lvdenied 8 NY3d 950 [2007]; see People v Ribowsky, 77 NY2d 284, 292-293[1991]; People v Morales, 309 AD2d 1065, 1066 [2003], lv denied 1NY3d 576 [2003]).
Defendant further asserts that the Sandoval ruling, in which Supreme Courtprecluded the People from inquiring into approximately half of the items included intheir Sandoval proffer but allowed inquiry into others, constituted an abuse ofdiscretion. Defendant specifically complains of the fact that Supreme Court allowed fullinquiry into his 1999 conviction for criminal possession of a weapon in the third degree.Remoteness in time does not "automatically require[ ] preclusion of a prior conviction"(People v Wilson, 78 AD3d1213, 1215 [2010], lv denied 16 NY3d 747 [2011]; see People v Smith, 63 AD3d1301, 1304 [2009], lv denied 13 NY3d 862 [2009]), however, and the 1999conviction was relevant to the issues of defendant's credibility and his willingness toplace his own interests above the interests of society (see People v Riley, 117 AD3d 1495, 1496 [2014], lvdenied 24 NY3d 1088 [2014]; People v Morris, 101 AD3d 1165, 1166 [2012], lvdenied 20 NY3d 1102 [2013]). Thus, in our view, the Sandoval ruling"appropriately balanced the probative value of the proof pertaining to defendant'scredibility against the risk of unfair prejudice" (People v Nichol, 121 AD3d 1174, 1176 [2014]; seePeople v Sandoval, 34 NY2d 371, 375 [1974]).
There is nothing in the record to support defendant's claim that the sentence wasvindictive or imposed as punishment for exercising his right to a jury trial (see People v Griffin, 122AD3d 1068, 1071 [2014]; People v Shoemaker, 119 AD3d 1073, 1077 [2014], lvdenied 25 NY3d 992 [2015]). Supreme Court relied upon appropriate sentencingfactors in imposing sentence and, after reviewing those factors ourselves, we areunpersuaded that the sentence was harsh or excessive (see People v Grajales, 294AD2d 657, 659 [2002], lv denied 98 NY2d 697 [2002]).
Peters, P.J., Garry and Rose, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:An investigator testifiedat trial with regard to the recorded telephone calls and stated that he recognizeddefendant's voice from their prior interactions.
Footnote 2:Defendant states that hischallenge is one directed toward the weight of the evidence, but refers to it elsewhere asa challenge to the legal sufficiency of the evidence and confuses the standards for legalsufficiency and weight of the evidence review in his brief. We need not detain ourselvesin discerning what argument defendant is actually endeavoring to assert, since our weightof the evidence review necessarily involves a determination as to whether "each elementof the crime[ ] was proven beyond a reasonable doubt" (People v Rodriguez, 121 AD3d1435, 1436 [2014], lv denied 24 NY3d 1122 [2015]; see People v Danielson, 9NY3d 342, 349 [2007]).