| People v Williams |
| 2017 NY Slip Op 03562 [150 AD3d 1315] |
| May 4, 2017 |
| Appellate Division, Third Department |
[*1](May 4, 2017)
| The People of the State of New York, Respondent, v MichaelWilliams, Appellant. |
Mark Diamond, Albany, for appellant.
Eric T. Schneiderman, Attorney General, New York City (Matthew B. Keller of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered July 10, 2013, upon a verdict convicting defendant of the crimes of conspiracy in thesecond degree, criminal sale of a controlled substance in the second degree (two counts), criminalsale of a controlled substance in the third degree (seven counts), criminal possession of acontrolled substance in the third degree (six counts) and criminal possession of a controlledsubstance in the fourth degree.
Following an investigation by the Attorney General's Organized Crime Task Force,defendant and 51 others were charged in a 261-count indictment with conspiracy in the seconddegree and other crimes stemming from the distribution and sale of cocaine and heroin in AlbanyCounty, among other locations. The case against defendant was based in large part uponintercepted cellular telephone conversations and text messages exchanged with certaincodefendants and other individuals in which coded language was used to disguise the illicitnature of the transactions. Following an extensive 11-week jury trial,[FN1] defendant was convicted of one count ofconspiracy in the second degree (count [*2]1), two counts ofcriminal sale of a controlled substance in the second degree (counts 199 and 206), seven countsof criminal sale of a controlled substance in the third degree (counts 196, 197, 198, 201, 203, 207and 208), six counts of criminal possession of a controlled substance in the third degree (counts176, 191, 192, 249, 251 and 261) and one count of criminal possession of a controlled substancein the fourth degree (count 250). He was sentenced, as a second felony offender, to an aggregateprison term of 108 years, with various terms of postrelease supervision. He now appeals.
Defendant first contends that County Court should have dismissed counts 176, 191 and 192,charging him with criminal possession of a controlled substance in the third degree (seePenal Law § 220.16 [1], [12]), because the factual allegations set forth in theindictment did not support these charges. We disagree. Although the indictment erroneouslyincluded the word "attempt" in reference to these counts, the applicable statutory provisions wereexpressly incorporated by reference, thereby apprising defendant of the elements of each crimeand rendering counts 176, 191 and 192 jurisdictionally valid (see People v Cane, 123 AD3d 1301, 1302 [2014], lv denied25 NY3d 988 [2015]; see generally People v D'Angelo, 98 NY2d 733, 734-735 [2002]).In addition, County Court properly granted the People's pretrial motion to amend these counts toremove the word "attempt" (see Peoplev Mitchell, 94 AD3d 1252, 1253 [2012], lv denied 19 NY3d 964 [2012]).Defendant's related challenge to the factual allegations set forth in counts 1 and 250, chargingdefendant with conspiracy in the second degree (see Penal Law § 105.15)and criminal possession of a controlled substance in the fourth degree (see Penal Law§ 220.09 [1]), respectively, is unpreserved for our review (see People v Orcutt, 49 AD3d1082, 1084 [2008], lv denied 10 NY3d 938 [2008]). Were we to review this claim,we would find it to be equally without merit.
Defendant's claim that numerous counts of the indictment are duplicitous is similarlyunpreserved for our review. In any event, this contention is also without merit inasmuch as"[e]ach disputed count charged a single offense and the evidence at trial, as well as theinstructions to the jury, made plain that each count involved a single criminal act" (People v Simmons, 115 AD3d1018, 1019 [2014]; see CPL 200.30 [1]; People v Whitehead, 130 AD3d 1142, 1143 [2015], affd 29NY3d 956 [2017]; see generally Peoplev Alonzo, 16 NY3d 267, 269 [2011]).[FN2] Although defendant's related contention that hewas convicted upon multiplicitous counts is preserved for our review, we nonetheless find it tobe unavailing. In this regard, "[a]n indictment is considered multiplicitous when two or moreseparate counts charge the same crime" (People v Blount, 129 AD3d 1303, 1304 [2015], lv denied27 NY3d 992 [2016]; see People v Alonzo, 16 NY3d at 269; People v Hoffman, 130 AD3d1152, 1153 [2015], lv denied 26 NY3d 1009 [2015]). Here, a review of the recorddemonstrates that each challenged count required proof of an additional fact that the others didnot and, thus, defendant was not convicted upon multiplicitous counts (see People vNailor, 268 AD2d 695, 696 [2000]; People v Kindlon, 217 AD2d 793, 795 [1995],lv denied 86 NY2d 844 [1995]).
Next, defendant contends that his conspiracy conviction (count 1) and 12 of his other [*3]convictions (counts 176, 191, 192, 196, 197, 198, 199, 201, 203,206, 207 and 208) were not supported by legally sufficient evidence and were against the weightof the evidence because the People failed to recover or produce any drugs actually possessed orsold by him and, therefore, they were unable to establish his participation in the conspiracy or hispossession and sale of drugs as to these counts. When conducting our legal sufficiency analysis,"we must evaluate whether, after viewing the evidence in the light most favorable to the People,any rational trier of fact could have found the essential elements of the crime beyond areasonable doubt" (People v Ramos,19 NY3d 133, 136 [2012] [internal quotation marks, brackets, emphasis and citationsomitted]; see People v Novak, 148AD3d 1352, 1354 [2017]). In our weight of the evidence review, where, as here, a differentverdict would not have been unreasonable, we "must, like the trier of fact below, weigh therelative probative force of conflicting testimony and the relative strength of conflicting inferencesthat may be drawn from the testimony" (People v Bleakley, 69 NY2d 490, 495 [1987][internal quotation marks and citation omitted]; see People v Danielson, 9 NY3d 342, 348 [2007]). In ourevaluation of the evidence, we are mindful that "the People are not required to recover drugs fortesting in order to prove possession or sale of a controlled substance; rather, they may rely onother evidence that establishes the nature of the drugs in question beyond a reasonable doubt" (People v Wright, 139 AD3d 1094,1098 [2016], lv denied 28 NY3d 939 [2016]; see People v Whitehead, 29 NY3d 956, 958 [2017]).
Dennis Guiry, an investigator with extensive experience with gang and narcoticsinvestigations and the use of dialogue disguised for drug dealings, testified that he was the caseofficer for this investigation and, in that capacity, he listened to "hundreds" of wire-tapped phonecalls. Guiry testified that he has had numerous prior dealings with defendant and that he wasfamiliar with defendant's voice from those dealings, as well as from listening to defendant's voicein approximately 50 to 100 of the intercepted phone calls. In connection with Guiry's testimony,the relevant phone calls were played to the jury and the jury was provided with transcripts of theconversations and text messages to aid them when they were listening to the calls. After a callwas played, in most instances, Guiry provided his opinion as to the terms used and the true natureof the conversations. For example, Guiry testified that, in a series of calls on January 10, 2012,defendant can be heard discussing the difficulties that he was having cooking powder cocaineinto crack cocaine and, at one point, defendant stated that he "went and grabbed a dollar more."Although that statement was seemingly innocuous, Guiry testified that defendant was actuallyreferencing his purchase of 100 grams of cocaine. In addition to the proof regarding the specificoccasions on which defendant possessed or offered to sell drugs, the People also introducedintercepted phone calls between defendant and certain coconspirators, including codefendant GuyAnderson, in which they discussed, among other things, cooking cocaine and gathering money toenable Anderson to purchase drugs from a dealer in New York City. Moreover, a witnesstestified that, during the alleged conspiracy period, she purchased heroin from defendant "four orfive hundred times." Further, when defendant was arrested at his residence in February 2012, alarge amount of cocaine and crack cocaine was discovered, as well as a digital scale, one of thephones that was a target of the eavesdropping warrant and a glass jar containing crack cocaineresidue.[FN3]
After viewing all of the foregoing proof in the light most favorable to the People, andnotwithstanding the fact that no drugs were recovered on any occasion other than when defendant[*4]was arrested, we are satisfied that legally sufficient evidencewas adduced in the form of, among other proof, the extensive phone records and Guiry'sexplanatory testimony (see People v Whitehead, 130 AD3d at 1145). Moreover, afterviewing the evidence in a neutral light and according deference to the jury's credibilitydeterminations, we find that the weight of the evidence also supports the challenged convictions(see People v Williams, 138 AD3d1233, 1235-1236 [2016], lv denied 28 NY3d 939 [2016]; People v Scott, 129 AD3d 1306,1307 [2015], lv denied 26 NY3d 1092 [2015]). Finally, contrary to defendant'scontention, County Court did not abuse its discretion by admitting into evidence Guiry's experttestimony, which was properly limited to an explanation of information that would otherwise bebeyond the knowledge of a typical juror (see People v Anderson, 149 AD3d at 1413; People v Blackman, 118 AD3d1148, 1150 [2014], lv denied 24 NY3d 1001 [2014]; see also People v Inoa, 25 NY3d466, 472 [2015]; People v Whitehead, 130 AD3d at 1144-1145).
Defendant also contends that County Court erred in denying his request to provide the jurywith a multiple conspiracies charge. More specifically, defendant notes that the evidence at trialdid not establish that he was ever in contact with the main supplier of the narcotics and he arguesthat, therefore, he cannot be considered a member of the single overarching conspiracy. Wecannot agree. A multiple conspiracies charge "recogniz[es] the possibility of multipleconspiracies and direct[s] an acquittal in the event that the jury concludes that something otherthan a single integrated conspiracy was proven" (People v Leisner, 73 NY2d 140, 150[1989]). A trial court is required to provide this charge "whenever the possibility of more thanone conspiracy is supported by a reasonable view of the evidence" (id.; see People v Brown, 142 AD3d769, 771 [2016], lvs denied 28 NY3d 1123, 1125 [2016]; People v Alfonso, 35 AD3d 269,269 [2006], lv denied 8 NY3d 878 [2007]; People v Sica, 163 AD2d 541, 542[1990], lv denied 76 NY2d 990 [1990]). Contrary to defendant's contention, however, itis of no consequence that the proof indicated that he was not in contact with all of the allegedcoconspirators (see generally People vRiggins, 28 AD3d 934, 935-936 [2006], lv denied 6 NY3d 897 [2006];People v Brooks, 268 AD2d 889, 890-891 [2000], lv denied 95 NY2d 794[2000]). Here, the People introduced numerous intercepted phone conversations that defendanthad with other alleged coconspirators clearly establishing defendant's intent to obtain anddistribute large quantities of narcotics in furtherance of one overarching conspiracy. Thus, in ourview, "[t]here was no reasonable view of the evidence that there was any conspiracy narrower inscope than the single conspiracy charged in the indictment" (People v Brown, 142 AD3dat 771; see People v Anderson, 149 AD3d at 1414).
Regarding the sentence, we cannot agree with defendant's contention that the imposition ofconsecutive sentences for counts 249 and 251 was illegal inasmuch as the record demonstratesthat " 'defendant's acts underlying the crimes [were] separate and distinct' " (People v Major, 143 AD3d 1155,1159 [2016], lv denied 28 NY3d 1147 [2017], quoting People v Ramirez, 89NY2d 444, 451 [1996]; cf. People v Farga, 180 AD2d 484, 485 [1992], lv denied80 NY2d 830 [1992]; compare People vMolina, 73 AD3d 1292, 1292-1293 [2010], lv denied 15 NY3d 807 [2010]). Weare, however, persuaded that defendant's aggregate sentence of 108 years in prison, althoughlegally permissible, should be modified in the interest of justice (see CPL 470.15 [6] [b];People v Delgado, 80 NY2d 780, 783 [1992]; People v Perry, 70 AD3d 1063, 1065 [2010], lv denied 14NY3d 804 [2010]; People vWallace, 53 AD3d 795, 798 [2008], lv denied 11 NY3d 795 [2008]; People v McCombs, 18 AD3d 888,890-891 [2005]). After a review of the circumstances of this case and defendant's prior criminalhistory, we modify defendant's sentence by directing that the sentences for counts 196, 199, 206and 249 run consecutively to each other, but concurrently to the sentences on the other counts,and the sentences on all other counts are to run concurrently to each other. Thus, defendant'ssentence will be an aggregate prison term of 39 years, to be [*5]followed by five years of postrelease supervision.[FN4]
Defendant's remaining contentions, including his claim that Albany County was not theappropriate venue, have been considered and determined to be lacking in merit.
McCarthy, J.P., Garry, Egan Jr. and Mulvey, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by directing that defendant'ssentences for criminal sale of a controlled substance in the third degree, criminal sale of acontrolled substance in the second degree (two counts) and criminal possession of a controlledsubstance in the third degree under counts 196, 199, 206 and 249 of the indictment shall runconsecutively to one another and concurrently to the remaining sentences imposed, and saidremaining sentences shall run concurrently to each other, and, as so modified, affirmed.
Footnote 1:Defendant was jointly tried withfive codefendants. This Court recently handed down a decision with regard to codefendant GuyAnderson (People v Anderson, 149AD3d 1407 [2017]).
Footnote 2:Defendant's pro se contentionthat the conspiracy charge (count 1) was duplicitous is also unpreserved for our review and, inany event, without merit (see People v Falkenstein, 288 AD2d 922, 922-923 [2001],lv denied 97 NY2d 704 [2002]; see also People v Charles, 61 NY2d 321, 327-328[1984]).
Footnote 3:The drugs found in defendant'sresidence formed the basis for counts 249, 250, 251 and 261. Defendant does not challenge thelegal sufficiency or weight of the evidence as to these charges.
Footnote 4:Although the total aggregate ofthe four terms of postrelease supervision is 13 years, the terms will merge as a matter of law andare satisfied "by discharge of the period of post-release supervision having the longest unexpiredtime to run," which here is five years (Penal Law § 70.45 [5] [c]; see People v Decoste, 144 AD3d1265, 1266 n [2016]; People vStocum, 143 AD3d 1160, 1163 [2016]).