| People v Wright |
| 2016 NY Slip Op 03550 [139 AD3d 1094] |
| May 5, 2016 |
| Appellate Division, Third Department |
[*1](May 5, 2016)
| The People of the State of New York,Respondent, v Ronald Wright, Also Known as Nino,Appellant. |
George J. Hoffman Jr., Albany, for appellant, and appellant pro se.
Eric T. Schneiderman, Attorney General, New York City (Hannah Stith Long ofcounsel), for respondent.
Garry, J.P. Appeal from a judgment of the County Court of Albany County (Breslin,J.), rendered July 5, 2011, upon a verdict convicting defendant of the crimes of enterprisecorruption, attempted criminal possession of a controlled substance in the third degree,criminal possession of a controlled substance in the third degree, criminal sale of acontrolled substance in the second degree, conspiracy in the second degree and criminalsale of controlled substance in the third degree (17 counts).
Defendant was one of approximately 40 individuals who were indicted for drugcrimes in September 2010 after an investigation into narcotics trafficking in and aroundthe City of Albany by the Attorney General's Organized Crime Task Force. The Peoplealleged that defendant, who was based in Long Island, was a heroin supplier for anAlbany-based group of members of the Bloods gang, including codefendant ErickCochran, who shared the common purpose of selling marihuana and narcotics. The caseagainst defendant was based in large part upon intercepted cellular telephoneconversations and text messages exchanged among defendant, Cochran and otherindividuals. Dennis Guiry, an investigator who participated in the surveillance, testifiedat trial regarding his interpretation of the intercepted communications, which allegedlyrevealed that the group was a criminal enterprise, that defendant and Cochran traffickedin narcotics as members of this group and, specifically, that defendant supplied Cochranwith bulk heroin on two occasions in July 2010, which Cochran then sold to individualsin the Albany area.
[*2] Following a jointjury trial with Cochran, defendant was convicted of enterprise corruption, attemptedcriminal possession of a controlled substance in the third degree, criminal possession of acontrolled substance in the third degree, criminal sale of a controlled substance in thesecond degree, conspiracy in the second degree and 17 counts of criminal sale of acontrolled substance in the third degree. He was thereafter sentenced to an aggregateprison term of 141
Defendant contends that the People failed to establish that he sold more than one-halfounce of heroin on the date charged in the indictment (see Penal Law§ 220.41 [1]) and, thus, his conviction for criminal sale of a controlledsubstance in the second degree is not supported by legally sufficient evidence and is alsoagainst the weight of the evidence. Although the legal sufficiency contention was notproperly preserved (see People vHawkins, 11 NY3d 484, 492 [2008]; People v Cruz, 131 AD3d 724, 724 [2015], lvdenied 26 NY3d 1087 [2015]), we necessarily determine whether each element ofthe crime was proven beyond a reasonable doubt in assessing the claim that theconviction is against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Scott, 129 AD3d1306, 1307 [2015], lv denied 26 NY3d 1092 [2015]). This challengedcharge arose from the second of the two July 2010 heroin transactions. Guiry testifiedthat the intercepted communications revealed that Cochran contacted defendant on July11, 2010 to advise that he had sold all of the heroin from the earlier transaction andwished to make another purchase. Negotiations as to price and quantity ensued, and onJuly 12, 2010—the date charged in the indictment—Cochran traveled toNew York City to meet with defendant. According to Guiry, their interceptedconversations revealed that, on that day, they reached an agreement that Cochran wouldpurchase 16 grams of heroin. No transfer of drugs actually occurred until the next day,when defendant arranged for Cochran to buy heroin from a seller on Long Island. By thattime, Cochran had spent some of the money that he had brought with him and couldafford to purchase only approximately 13
We agree with defendant that the People failed to prove beyond a reasonable doubtthat a statutory sale of more than one-half ounce of heroin occurred. A statutory sale maybe proven by evidence of an offer or agreement to sell drugs, but "the weight of thematerial must be independently shown" (People v George, 67 NY2d 817, 819[1986]; see Penal Law § 220.00 [1]; People v Banchs, 268AD2d 262, 262 [2000], lv denied 95 NY2d 793 [2000]). Here, no narcotics wererecovered by the police, and the proof of the weight of heroin that defendant agreed toprocure for Cochran was equivocal; while the amount of 16 grams was discussed,Cochran also stated that he might purchase "something like that" or, because he hadlimited funds and other expenses, might "get something lower." As the People correctlyargue, the full amount of transferred narcotics need not always be recovered to satisfy theweight requirement when a sale is based upon an offer or an agreement; nevertheless,there must be some form of independent evidence from which the total weight can beextrapolated (see People v Alvarado, 228 AD2d 168, 168 [1996], lvdenied 88 NY2d 980 [1996]). As there was none here, defendant's conviction forcriminal sale of a controlled substance in the second degree is reversed and thecorresponding count of the indictment dismissed (see CPL 470.20 [2]; Peoplev Acevedo, 192 AD2d 1094, 1094 [1993], lv denied 81 NY2d 1010[1993]).
As a result of this determination, defendant's conviction for conspiracy in the seconddegree must also be reversed. "A person shall not be convicted of conspiracy unless anovert act is alleged and proved to have been committed by one of the conspirators infurtherance of the conspiracy" (Penal Law § 105.20; see generallyPeople v Monday, 309 AD2d 977, 978 [2003]). Here, the People alleged thatdefendant and Cochran conspired to commit a class A felony [*3]consisting of the sale of more than one-half ounce of heroinon July 12, 2010; the overt act alleged in the indictment was the statutory sale itself. Ourdetermination that the People failed to prove beyond a reasonable doubt that the July 12,2010 agreement involved the requisite amount of heroin requires a finding that thePeople also failed to prove the alleged overt act in support of the conspiracy charge(see Penal Law § 105.20; People v Menache, 98 AD2d 335,337-338 [1983]; compare People v Weaver, 157 AD2d 983, 984-985 [1990],lv denied 76 NY2d 744 [1990]). The People's contention that the indictment alsoalleged that overt acts occurred on two other dates is unavailing, as neither of thesetransactions was shown to have been undertaken in furtherance of the alleged conspiracyto commit a class A felony.
Next, defendant contends that the People failed to prove that the substance that heand Cochran possessed and sold was heroin and, thus, that his 17 convictions forcriminal sale of a controlled substance in the third degree, as well as his convictions forattempted criminal possession of a controlled substance in the third degree and criminalpossession of a controlled substance in the third degree, are unsupported by legallysufficient evidence and are against the weight of the evidence.[FN1] Defendant preserved this contention attrial with the requisite "specifically directed" argument only as to the criminal possessionand attempted criminal possession charges (People v Gray, 86 NY2d 10, 19[1995] [internal quotation marks omitted]). Nevertheless, as previously noted, we mustdetermine whether each element of all of the crimes was proven beyond a reasonabledoubt as part of our weight of the evidence review (see People v Danielson, 9NY3d at 348-349).
As for the merits, the People are not required to recover drugs for testing in order toprove possession or sale of a controlled substance; rather, they may rely on otherevidence that establishes the nature of the drugs in question beyond a reasonable doubt(see People v Whitehead,130 AD3d 1142, 1144-1145 [2015], lv granted 26 NY3d 1043 [2015]).Here, Guiry testified that Cochran and defendant used slang terms for heroin in theintercepted communications, negotiated prices that corresponded with the going pricesfor heroin, arranged to obtain a cutting agent used only with heroin, and referencedpackaging methods used solely for that drug. Additionally, two customers who boughtdrugs from Cochran immediately after his transactions with defendant—both ofwhom were experienced users of heroin and other drugs—testified that thesubstance they purchased was heroin. Finally, lab analysis of a substance seized from oneof the customers immediately after he purchased it confirmed that it was heroin.Accordingly, the People proved beyond a reasonable doubt that the substance possessedand sold by Cochran and defendant was heroin (see People v Williams, 138 AD3d 1233, 1236 [2016]; People v Whitehead, 130 AD3d at 1145).
We reject defendant's claim that his conviction for enterprise corruption was basedon legally insufficient evidence and was against the weight of the evidence in that thePeople failed to establish his connection to a "criminal enterprise" (Penal Law§ 460.20 [1]). The crime of [*4]enterprisecorruption is committed when a defendant, "having knowledge of the existence of acriminal enterprise and the nature of its activities, and being employed by or associatedwith such enterprise, . . . intentionally conducts or participates in the affairsof an enterprise by participating in a pattern of criminal activity" (Penal Law§ 460.20 [1] [a]). A criminal enterprise, in turn, is "a group of personssharing a common purpose of engaging in criminal conduct, associated in anascertainable structure distinct from a pattern of criminal activity, and with a continuityof existence, structure and criminal purpose beyond the scope of individual criminalincidents" (Penal Law § 460.10 [3]).
The People submitted proof of the activities and organizational structure of"G-Shine," a sect of the Bloods street gang that was engaged in the common purpose ofmaking money through narcotics trafficking in and around Albany. Guiry described thecustoms, rules and organizational structure of the Albany group as revealed inintercepted communications among its members, including particular speech patterns, theuse of the color red for identification, initiation requirements, a loyalty oath, scheduledmeetings, and rules such as prohibitions against cooperation with law enforcement.Members of the Albany group had specialized functions in supplying and selling variousdrugs and obtaining customers, and certain members occupied leadership roles with theauthority to schedule meetings, enforce rules and punish violations. This evidenceestablished the existence of a distinct criminal entity with an ascertainable structure thatwent beyond "mere[ ] patterns of criminal conduct" (People v Western Express Intl., Inc., 19 NY3d 652, 658[2012]).
Although defendant was not based in the Albany area and did not attend the Albanygroup's meetings, the People nevertheless established his participation with evidencethat, among other things, he interacted with Cochran and other group members indrug-trafficking activities, regularly used slang terms indicating his membership in theBloods street gang, and was knowledgeable about the group's structure and leadership. Inthe intercepted calls, defendant referred to himself as a "Big Homie"—a term that,according to Guiry, means a boss within the rank structure of the Bloods; he furtherstated that it was his "job" to enforce the rule against cooperating with law enforcementand that he had the authority to kill other Bloods. When one of the Albany group'sleaders was shot in what the People alleged was retaliation for his suspected cooperationwith law enforcement, someone who was involved in the shooting immediately reportedit to defendant, who, in turn, discussed the ramifications of the shooting upon the Albanygroup's leadership structure with Cochran.[FN2] In other conversations, defendant andCochran discussed the evidence that this individual had been cooperating with lawenforcement, as well as the effect upon the Albany group of another group leader's arrest.Guiry further described a call between defendant and another member of the Bloods whowas allegedly a cocaine supplier for the Albany group, in which defendant told thisindividual that his suspected activities as a "snitch" had interfered with a drug transactionthat defendant had authorized, reminded the individual of the prohibition againstcooperating with law enforcement and warned that violations were "serious s[ ]." Thisevidence, as well as the previously-discussed evidence that defendant supplied narcoticsto Albany group members for resale in the Albany area, was legally sufficient to establishdefendant's knowing and intentional participation in a criminal enterprise and thus tosupport his conviction for enterprise corruption (see Penal Law§ 460.20 [1] [a]; People v Keschner, 25 NY3d 704, 720-721 [2015]; People v Kancharla, 23 NY3d294, 305-306 [2014]). Further, according the appropriate deference to the jury'scredibility assessments and viewing the evidence in a neutral light (see People v Gibson, 121AD3d 1416, [*5]1418 [2014], lv denied 24NY3d 1119 [2015]), we find that the verdict on this count is supported by the weight ofthe evidence.
County Court did not err in refusing defendant's request for an instruction regardingan agency defense, as there was no "evidence, however slight, to support the inferencethat [defendant] was acting, in effect, as an extension of the buyer" (People vArgibay, 45 NY2d 45, 55 [1978], cert denied 439 US 930 [1978]; seePeople v Ortiz, 76 NY2d 446, 448 [1990]; People v Nowlan, 130 AD3d 1146, 1147 [2015]). Theevidence clearly established that defendant and Cochran had previously engaged in drugtransactions as part of a business relationship and that both parties expected thatdefendant would earn commissions for his assistance. Viewing the proof in the light mostfavorable to defendant, as we must (see People v Delaney, 309 AD2d 968, 970[2003]), there was no reasonable view of the evidence that supported a possible findingof the agency defense (see People v Herring, 83 NY2d 780, 782-783 [1994];People v Ortiz, 76 NY2d at 449-450; People v Hamilton, 135 AD3d 500, 501 [2016]).Defendant's further contention that County Court's jury instruction on enterprisecorruption was improper in that it failed to provide the name of the alleged criminalenterprise is unpreserved, due to the lack of any objection (see CPL 470.05 [2];People v Melendez, 16NY3d 869, 869-870 [2011]; People v Gibson, 121 AD3d at 1419 n). Asthere was no evidence of any other criminal enterprise that might have improperly led thejury to consider an uncharged theory of liability (see People v Grega, 72 NY2d489, 496-497 [1988]), we decline to exercise our interest of justice jurisdiction to takecorrective action.
We reject defendant's contention that he did not receive the effective assistance ofcounsel. Defendant finds fault with his trial counsel's failure to request an instruction ongeographic jurisdiction. Notably, defense counsel argued in summation that defendantwas never in Albany County, and objected when, immediately thereafter, the Peopleasked County Court to instruct the jury that jurisdiction was obtained by defendant'sparticipation in a telephone conversation with an individual in Albany County. "[T]oprevail on a claim of ineffective assistance of counsel, it is incumbent upon a defendantto establish that alleged errors by counsel demonstrate the absence of a legitimatestrategy or explanation" (Peoplev Welch, 137 AD3d 1313, 1313 [2016]; see People v Benevento, 91NY2d 708, 712 [1998]). It appears that defendant's trial counsel may have reasonablychosen to avoid the instruction, as geographic jurisdiction is established when apreponderance of the evidence indicates that an element of the offense occurred in thejurisdiction—such as, here, a statement over the telephone to a person in AlbanyCounty in furtherance of a drug transaction (see CPL 20.40 [1]; 20.60 [1];People v Muniz, 215 AD2d 881, 883 [1995]). Thus, defendant's currentdisagreement with this strategy does not establish that he did not receive meaningfulrepresentation (see People vHawkins, 130 AD3d 1298, 1305 [2015], lv denied 26 NY3d 968[2015]).
Further, defendant was not deprived of the effective assistance of counsel by thefailure of both his initial assigned counsel and the subsequent trial counsel who laterreplaced her to challenge the eavesdropping warrants that authorized the interception ofCochran's telephone calls, as counsel will not be found to be ineffective for failing tomake an argument that has little or no chance of succeeding (see People v Stultz, 2 NY3d277, 287 [2004]; People vGarcia, 131 AD3d 732, 734-735 [2015]). Here, the People discovered afterobtaining an eavesdropping warrant for a telephone purportedly used by anotherindividual that the telephone was actually used by Cochran and that his conversationswith defendant referenced crimes beyond the scope of the original warrant. They soughtto amend the warrant to retroactively authorize the interception of conversations relatedto these crimes and at the same time notified the court that the telephone was used byCochran. Although captioned as an amendment, the contents of the [*6]People's application met the statutory and constitutionalrequirements to establish probable cause for an eavesdropping warrant on a newtelephone and new telephone number (see CPL 700.20); accordingly, defendantdid not establish that a challenge on this ground would have succeeded. Defendant'scounsel provided vigorous representation that included, among other things, obtaining anacquittal upon a charge of attempted murder in the second degree and two other charges.Viewing the evidence as a whole, we find that defendant received meaningfulrepresentation (see People v Baldi, 54 NY2d 137, 147 [1981]; People v Gokey, 134 AD3d1246, 1248 [2015]).
Finally, defendant contends that the sentence imposed by County Court is harsh andexcessive. As originally imposed, defendant's sentence included his conviction for theclass A-II felony of criminal sale of a controlled substance in the second degree andtherefore was not subject to the statutory cap limiting the aggregate maximum term of hisconsecutive sentences to 30 years (see Penal Law §§ 70.30 [1][e] [i]; 220.41; Matter of Roballo v Smith, 63 NY2d 485, 487-488 [1984]). Ourreversal of that conviction renders the statutory cap applicable and thus limits theaggregate term of defendant's sentences. As so limited, and in view of defendant'sextensive criminal history, we find no abuse of discretion or extraordinary circumstanceswarranting any modification (see People v Battistini, 306 AD2d 636, 639 [2003],lv denied 1 NY3d 568 [2003]).
Egan Jr., Lynch, Devine and Clark, JJ., concur. Ordered that the judgment ismodified, on the law and the facts, by reversing defendant's convictions of criminal saleof a controlled substance in the second degree and conspiracy in the second degree undercounts 112 and 194 of the indictment; said counts dismissed and the sentences imposedthereon vacated; and, as so modified, affirmed.
Footnote 1:It is undisputed thatdefendant did not personally participate in Cochran's sales of heroin in the Albany area.Instead, the criminal sale charges against defendant were based upon a theory ofaccessorial liability, which required proof "that defendant acted with the requisite mentalculpability . . . and that he solicited, requested, commanded, importuned, orintentionally aided" Cochran in making the sales (People v Blackman, 118 AD3d 1148, 1149 [2014] [internalquotation marks, brackets and citations omitted], lv denied 24 NY3d 1001[2014]).
Footnote 2:The jury acquitteddefendant of a charge of attempted murder in the second degree arising from thisshooting.