| People v Calderon |
| 2008 NY Slip Op 07559 [55 AD3d 321] |
| October 7, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Ricardo Calderon, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Dana Poole of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered December21, 2006, convicting defendant, after a jury trial, of conspiracy in the second degree, criminalpossession of a controlled substance in the first degree and criminal sale of a controlled substancein the first degree, and sentencing him to concurrent terms of 6 to 18 years, nine years and nineyears, respectively, unanimously affirmed.
Defendant did not preserve his challenges to the legal sufficiency of the evidence and wedecline to review them in the interest of justice. As an alternative holding, we also reject them onthe merits. We further find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerningcredibility, including its rejection of defendant's testimony that a certain transaction involved realestate rather than drugs. Intercepted telephone conversations, surveillance, and the large amountof cash seized from him after one transaction demonstrated defendant's participation in aconspiracy with the other narcotics traffickers (see generally People v Rodriguez, 180AD2d 446 [1992], lv denied 79 NY2d 1006 [1992]). Similarly, even though the drugswere not recovered, there was ample proof of the weight and content of the drugs that defendantpossessed and sold, based on the wiretapped telephone conversations containing codedreferences to the heroin deal being arranged and the amount of money to be paid, the amount ofmoney seized from defendant, and the testimony of an experienced narcotics investigator as tothe usual price of one-half kilogram of heroin.
The court properly denied defendant's speedy trial motion. The court correctly excluded theperiod during which defense motions were under consideration by the court (see CPL30.30 [4] [a]). The People's delay in responding to defendant's omnibus motion was reasonable inlight of the motion's complexity. Defendant's claim of unreasonable delay in providing grand juryminutes is both unpreserved and unsupported by the record. The court also properly excluded aperiod during which a necessary witness was unavailable due to a serious illness. The courtconducted an evidentiary hearing on this branch of the motion, and the investigator's testimonywas more than enough to establish that he had been unavailable during the period in question(see People v Goodman, 41 NY2d 888 [1977]; People v Martinez, 268 AD2d 354[2000], lv denied 94 NY2d 922 [2000]), without the need for any documentary proof.Similarly, [*2]we find the court's evidentiary rulings at the speedytrial hearing to be proper exercises of discretion.
Defendant's challenge to the sufficiency of the evidence before the grand jury is notreviewable on appeal (see CPL 210.30 [6]), and his other claim regarding the grand jurypresentation is meritless.
The court properly denied defendant's suppression motion. The hearing evidence clearlyestablished probable cause.
Defendant received effective assistance of counsel (see People v Benevento, 91NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]).Defendant has not established that he was prejudiced in any way by his counsel's demeanor andstyle of trying the case, or by the court's reactions to that conduct (see e.g. People v Martinez, 35 AD3d 156,157 [2006], lv denied 8 NY3d 924 [2007]). There is no merit to defendant's suggestionthat, at a proceeding that occurred long before trial, the court deprived him of the opportunity toretain different counsel if he chose to do so.
Defendant's related claim that he was deprived of a fair trial by the court's admonitions todefense counsel and its overall conduct of the trial is unpreserved (see People v Royster, 43 AD3d758, 760 [2007], lv denied 9 NY3d 1009 [2007]; People v Jenkins, 25 AD3d 444, 445 [2006], lv denied 6NY3d 834 [2006]), and we decline to review it in the interest of justice. None of the conduct ofwhich defendant complains was unduly prejudicial, and the court repeatedly instructed the jurynot to allow its admonitions to prejudice them against defendant, instructions that the jury ispresumed to have followed (see People v Davis, 58 NY2d 1102, 1104 [1983]).Concur—Lippman, P.J., Gonzalez, Sweeny, Catterson and DeGrasse, JJ.