| People v Cochran |
| 2016 NY Slip Op 04255 [140 AD3d 1198] |
| June 2, 2016 |
| Appellate Division, Third Department |
[*1](June 2, 2016)
| The People of the State of New York,Respondent, v Erick Cochran, Also Known as E-Murder, Also Known as E,Appellant. |
James E. Long, Public Defender, Albany, (Christopher J. Ritchey of counsel), forappellant, and appellant pro se.
Eric T. Schneiderman, Attorney General, New York City (Hannah Stith Long ofcounsel), for respondent.
Rose, J. 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 (two counts), conspiracyin the second degree and criminal sale of controlled substance in the third degree (31counts).
Defendant and numerous other individuals were arrested and charged with variouscrimes as a result of an investigation into the drug-related operations of the Bloods gangin Albany County. The case against defendant was largely based upon interceptedcellular telephone conversations and text messages between defendant and certain othercodefendants, including Ronald Wright, with whom defendant was jointly tried (see generally People v Wright,139 AD3d 1094 [2016]). The recorded calls and text messages revealed, amongother things, that defendant was engaged in trafficking heroin as part of a larger criminalenterprise controlled by the Bloods. Following a jury trial, defendant was convicted ofenterprise corruption, attempted criminal possession of a controlled substance in the thirddegree and conspiracy in the second degree, two counts of criminal possession of acontrolled substance in the third degree and 31 counts of criminal sale of a controlledsubstance in the third degree. He was sentenced to a statutorily-capped prison term of 30years (see Penal Law § 70.30 [1] [e] [i]), and he now [*2]appeals.
We agree with defendant's argument that his conviction for conspiracy in the seconddegree must be reversed, as the People's evidence was legally insufficient to prove hisguilt beyond a reasonable doubt. "A person is guilty of conspiracy in the second degreewhen, with intent that conduct constituting a class A felony be performed, he [or she]agrees with one or more persons to engage in or cause the performance of such conduct"(Penal Law § 105.15). Notably, "[a] person shall not be convicted ofconspiracy unless an overt act is alleged and proved to have been committed by one ofthe conspirators in furtherance of the conspiracy" (Penal Law § 105.20;see generally People v Monday, 309 AD2d 977, 978 [2003]).
Here, the only class A felony in the indictment in which defendant was implicatedcharged Wright, among other codefendants, with criminal sale of a controlled substancein the second degree, based upon an alleged sale by Wright of more than one-half ounceof heroin to defendant on July 12, 2010. At the joint trial, the People sought to convictWright of this crime based solely upon recorded telephone conversations between thetwo, in which Wright allegedly agreed to sell heroin to defendant. However, during thoseconversations, defendant equivocated as to how much heroin he sought to buy, and noneof the heroin from the transaction was recovered by police. As a result, the People failedto independently establish that the weight of the heroin sold exceeded the statutorythreshold (see Penal Law § 220.41 [1]; People v George, 67NY2d 817, 819 [1986]; People v Banchs, 268 AD2d 262, 262 [2000], lvdenied 95 NY2d 793 [2000]), and, in turn, they failed to prove an alleged overt actby defendant or Wright in support of the conspiracy charge (see People v Wright,139 AD3d at 1096-1097). Accordingly, we reverse defendant's conviction for conspiracyin the second degree and dismiss that count of the indictment against him.
Relying on our decision in People v Martin (81 AD3d 1178 [2011], lv denied17 NY3d 819 [2011]), defendant also argues that the People's failure to produce and testthe heroin related to each of the 31 counts of criminal sale of a controlled substance inthe third degree renders the evidence legally insufficient for those charges, inasmuch ashis ability to consummate the sales cannot be proven. We disagree. Where, as here, thePeople primarily rely on intercepted telephone conversations as evidence of a sale ofdrugs (see Penal Law §§ 220.00 [1]; 220.39 [1]), all thatMartin requires is the production of "some additional evidence establishing theexistence of [the drug in question] to support [defendant's] convictions for [its sale]"(People v Martin, 81 AD3d at 1179; see People v Samuels, 99 NY2d 20,24 [2002]; People v Mike, 92 NY2d 996, 998 [1998]). The People's evidenceincluded intercepted telephone calls and text messages, the testimony of two ofdefendant's customers (also codefendants) and the laboratory analysis of heroinrecovered from one of the customers and from defendant's residence. We are satisfiedthat the evidence, when viewed in its totality, was legally sufficient to establish thatdefendant had the intent and ability to sell heroin at the time of each and every one of thesales for which he was charged (see People v Wright, 139 AD3d at 1098; People v Williams, 138 AD3d1233, 1234-1236 [2016]; People v Whitehead, 130 AD3d 1142, 1145 [2015], lvgranted 26 NY3d 1043 [2015]).[FN1]
[*3] While defendant's contention that the People failed toadequately prove that he knowingly participated in a criminal enterprise is unpreservedfor our review (see People vAndrews, 127 AD3d 1417, 1419 [2015], lv denied 25 NY3d 1159[2015]; People v Lloyd, 118AD3d 1117, 1119 n 1 [2014], lv denied 25 NY3d 951 [2015]), we willevaluate whether the elements of the offense of enterprise corruption were established aspart of our weight of the evidence review (see People v Scott, 129 AD3d 1306, 1307 [2015], lvdenied 26 NY3d 1092 [2015]; People v Junior, 119 AD3d 1228, 1229 [2014], lvdenied 24 NY3d 1044 [2014]). Viewing the People's evidence in a neutral light andaccording deference to the jury's credibility determinations (see People v Scaringe, 137AD3d 1409, 1416 [2016]; People v Martin, 136 AD3d 1218, 1219 [2016]), we aresatisfied that the jury's verdict convicting defendant of enterprise corruption was notagainst the weight of the evidence (see People v Keschner, 25 NY3d 704, 719-720 [2015]; People v Kancharla, 23 NY3d294, 304-306 [2014]; People v Wright, 139 AD3d at 1099-1100). Further,with the exception of defendant's conviction for conspiracy in the second degree, we findthat the remainder of the verdict was also in accord with the weight of the evidence.
Defendant next argues that he was deprived of his right to a fair trial by the People'spresentation of prior bad act evidence consisting of four recorded telephone calls inwhich he and Wright discussed their willingness to kill certain fellow gang members whothey believed to be "snitches." Defendant claims that although County Court may haveproperly allowed the recordings to be played at his joint trial with Wright because Wrightwas charged with attempted murder, they did not pertain to his own case and, instead,showed only his propensity to commit a crime (see People v Molineux, 168 NY264, 293 [1901]). However, defendant failed to preserve this issue for our review, as he"raised no specific arguments at the [pretrial] hearing on the issue of admissibility orprejudicial effect of these [recordings]" (People v Tyrell, 82 AD3d 1352, 1356 [2011], lvdenied 17 NY3d 810 [2011]).[FN2] Were we to address defendant'sargument, we would find it to be without merit. To the extent that this evidence pertainsto defendant's case, it constitutes additional evidence of enterprise corruption because itwas probative of the organizational expectation of extreme loyalty from the gang'smembership and defendant's support for its method of disciplining members whodisobeyed the gang's rules (see Penal Law §§ 460.10 [3];460.20 [1]; People v Kancharla, 23 NY3d at 304-306; People v Western Express Intl.,Inc., 19 NY3d 652, 658 [2012]).
Defendant's contention that his trial counsel was ineffective for failing to move tosuppress the fruits of the eavesdropping warrant—i.e., the recordings of thecellular telephone calls at the heart of the People's proof—is foreclosed by ourholding in People v Wright (139 AD3d at 1101), where we rejected an identicalargument advanced by Wright [*4]regarding his owncounsel's purported ineffectiveness.
Finally, defendant's sentence was not unduly harsh or excessive. "Although thesentence imposed was significantly longer than that offered during plea negotiations, thisdisparity alone does not establish that defendant was punished for going to trial in theabsence of any other record support" (People v Acevedo, 118 AD3d 1103, 1108 [2014], lvdenied 26 NY3d 925 [2015]; see People v Nichol, 121 AD3d 1174, 1178 [2014], lvdenied 25 NY3d 1205 [2015]). Furthermore, while defendant attempts to diminishthe seriousness of his crimes by characterizing himself as "the quintessential non-violentoffender," he is hardly a petty criminal. Rather, defendant stands convicted of 35 crimesfor his role as a key player in a major drug trafficking and distribution enterprise. He alsohas a long history of prior convictions and has served multiple stints in jail for thosecrimes as well as for multiple parole violations. Accordingly, we find no abuse ofdiscretion or extraordinary circumstances warranting a reduction of defendant's sentencein the interest of justice (seePeople v Lee, 129 AD3d 1295, 1300 [2015], lv denied 27 NY3d 1001[2016]; People v Souffrant,104 AD3d 992, 993 [2013], lv denied 21 NY3d 1010 [2013]; People v Burroughs, 64 AD3d894, 898-899 [2009], lv denied 13 NY3d 794 [2009]).
Lahtinen, J.P., McCarthy, Garry and Aarons, JJ., concur. Ordered that the judgmentis modified, on the law, by reversing defendant's conviction of conspiracy in the seconddegree under count 194 of the indictment; said count dismissed and the sentence imposedthereon vacated; and, as so modified, affirmed.
Footnote 1:We also conclude thatthe evidence is legally sufficient to sustain defendant's convictions for criminalpossession of a controlled substance in the third degree and attempted criminalpossession of a controlled substance in the third degree (see Penal Law§§ 110.00, 220.16).
Footnote 2:Similarly unpreservedare defendant's additional assertions that he was prejudiced by County Court's failure toissue a limiting instruction confining the jury's consideration of the telephone recordingsto the issue of Wright's intent to commit attempted murder and by the People's commentson the recordings during their closing. Defendant did not explicitly request a limitinginstruction (see People vNicholson, 26 NY3d 813, 830 [2016]; People v Jordan, 193 AD2d 890,893 [1993], lv denied 82 NY2d 756 [1993]), nor did he object to the relevantportion of the People's closing (see People v Houck, 101 AD3d 1239, 1240 [2012]; People v Delosh, 2 AD3d1047, 1049 [2003], lv denied 1 NY3d 626 [2004]).