| People v Polanco |
| 2008 NY Slip Op 03961 [50 AD3d 587] |
| April 29, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Ruben Polanco, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Hilary Hassler of counsel), forrespondent.
Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered May 12, 2005,as amended May 25, 2005, convicting defendant, after a jury trial, of criminal sale of a controlledsubstance in the first degree and conspiracy in the second and fourth degrees, and sentencing himto concurrent terms of 19 years, 8
With appropriate limiting instructions, the court permitted a detective involved in theinvestigation to testify as an expert on coded drug-related conversations and to interpret aparticular recorded conversation that was the principal evidence supporting the sale conviction.This testimony was generally admissible, even though it involved the interpretation of otherwiseinnocuous terms that had drug-related meanings within the context of the particular case.Contrary to defendant's argument, the detective relied on his personal knowledge and other factsin evidence to interpret these terms, rather than hearsay or speculation (see People vJones, 73 NY2d 427, 430 [1989]; People v Ramirez, 33 AD3d 460 [2006], lv denied 7 NY3d928 [2006]; People v Contreras, 28AD3d 393, 394 [2006], lv denied 7 NY3d 847 [2006]). To the extent that thedetective may have gone beyond the proper role of an expert and encroached on the jury'sfact-finding function, any error was harmless. The court's instructions minimized any prejudice,and the agent's interpretation of the intercepted telephone call at issue was not the only evidencesubmitted by the People in support of the sale count. Defendant's associate, who was present atand overheard the conversation, fully explained its meaning. Among other things, he testifiedthat immediately after the phone conversation ended he had a follow-up conversation withdefendant, in which defendant confirmed that the call was about the sale of five kilograms ofcocaine. The accomplice also placed the call in context through extensive testimony about thedrug operation and the events leading up to the call. Furthermore, there was additional evidencesuch as telephone records showing several calls from the buyer to defendant during theapplicable time period, and police surveillance tracking the buyer's travel.
We similarly reject defendant's challenges to the sufficiency and weight of the evidencesupporting the sale count, and his claim that the court should have delivered a circumstantialevidence charge. As noted, there was ample evidence establishing that the phone conversation atissue was an offer to sell drugs. In addition, the evidence established that defendant had both the[*2]intent and the ability to proceed with the sale (see Peoplev Samuels, 99 NY2d 20 [2002]; People v Mike, 92 NY2d 996 [1998]). Most notably,at the end of the phone conversation, defendant specifically told his accomplice that he had theability to deliver the quantity of drugs at issue. Finally, since the evidence was both direct andcircumstantial, the court properly denied defendant's request for a circumstantial evidence charge(see People v Roldan, 88 NY2d 826 [1996]).
We perceive no basis for reducing the sentence. Concur—Saxe, J.P., Nardelli, Buckleyand Catterson, JJ.