| People v Heard |
| 2012 NY Slip Op 01385 [92 AD3d 1142] |
| February 23, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AntonioHeard, Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, New York City (Hannah Stith Long of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered April 1, 2010, upon a verdict convicting defendant of the crimes of criminal sale of acontrolled substance in the second degree, criminal possession of a controlled substance in thethird degree (two counts) and conspiracy in the fourth degree.
Defendant and four codefendants were indicted in May 2009 for various crimes, includingconspiracy in the fourth degree, arising from their alleged conduct in possessing and sellingcocaine in Albany County. The indictment followed a joint investigation by the Albany PoliceDepartment and the Attorney General's Statewide Organized Crime Task Force. Theinvestigation relied heavily upon monitoring phone calls pursuant to eavesdropping warrants and,during the course of the investigation, defendant was identified as an alleged supplier of cocaineto other codefendants for eventual street level sales.
In November 2008, police had begun to monitor the calls of codefendants Steven Fletcher(hereinafter Fletcher) and his brother, Lance Fletcher. By February 2009, police secured anadditional eavesdropping warrant to tap the phone of Fletcher's wife, codefendant Ebony Jones,who supplied codefendant Linda Ross with cocaine. On February 28, 2009, police monitored aphone call that Jones had with a supplier. An officer familiar with defendant claimed torecognize defendant's voice as the supplier in the call. Police continued audio and physicalsurveillance, including monitoring calls between defendant and Jones regarding cocaine [*2]transactions and observing defendant meeting Jones at locationsdiscussed in the calls. On March 24, 2009, police executed search warrants at Fletcher and Jones'apartment, where they seized cocaine and over $12,000 in cash, and at Ross' apartment, wherecocaine was seized.
Defendant was arrested in May 2009 and eventually went to trial on charges of one counteach of conspiracy in the fourth degree and criminal sale of a controlled substance in the seconddegree, and two counts of criminal possession of a controlled substance in the third degree. Ajury found him guilty of all four counts. He was sentenced, as a predicate felon, to an aggregate12-year prison term with five years of postrelease supervision. Defendant appeals.
We consider first defendant's argument that the verdict was against the weight of theevidence. Defendant asserts that the weight of the evidence established neither that it was hisvoice in the pertinent recorded calls with Jones nor that he was the person observed meetingJones. He further asserts that the weight of the evidence did not support the determination that hewas involved in the March 20, 2009 sale, upon which the sale and possession convictions rested.Since a different determination by the jury would have been reasonable, the first step in weight ofthe evidence analysis is satisfied (see People v Bleakley, 69 NY2d 490, 495 [1987]). Inthe second step, we, like the factfinder at trial, "must weigh conflicting testimony, review anyrational inferences that may be drawn from the evidence and evaluate the strength of suchconclusions" (People v Danielson, 9NY3d 342, 348 [2007]). When exercising this factual review, we accord great deference tothe jury's " 'opportunity to view the witnesses, hear the testimony and observe demeanor' " (People v Romero, 7 NY3d 633,644 [2006], quoting People v Bleakley, 69 NY2d at 495).
The People's proof included, among other things, 68 wiretapped phone conversations,testimony of police officers involved in the investigation, and surveillance photographs taken ofdefendant at one of the purported meetings between defendant and Jones. Early in theinvestigation, police believed that Fletcher was procuring cocaine from a supplier in New YorkCity. When the wiretap was extended to Jones' phone, Investigator Dennis Guiry heard Jonestalking to and planning to meet a supplier on February 28, 2009. Guiry attempted to follow Jonesas she went to meet the supplier, but lost her car. Detective Scott Gavigan, who knew defendant,listened to a recording of the conversation and claimed that he recognized defendant's voice asthe other caller. Thereafter, the same caller spoke with Jones on many occasions regardingcocaine transactions, and several times during March 2009 police watched as defendant arrived atmeetings that he had arranged with Jones during those conversations.
With respect to the March 20, 2009 transaction, the person identified by police as defendantagreed in a monitored phone conversation to sell Jones 1½ ounces of cocaine for $1,850.Defendant was observed leaving his residence, he proceeded to the described meeting place, heexited his car and entered Jones' car, and he stayed there very briefly. A phone call later thatevening occurred in which defendant indicated to Jones that the cocaine was suitable for cookinginto crack. This conversation, as well as most others between Jones and defendant, were oftencouched in street language, the meaning of which was explained by police with expertiseregarding language used to disguise drug transactions.
There were numerous credibility issues for the jury to consider. It had to consider thebelievability of the explanations and, in essence, translations provided by police of the recordedtransactions that were couched in street language. Gavigan's ability to recognize defendant'svoice when listening to a recording of the February 28, 2009 conversation was vigorously [*3]challenged by defendant. Defendant also challenged and offeredproof contesting the testimony of officers who visually identified defendant at key meetings withJones. We see no reason to reject these or the other credibility determinations made by the jury.According deference to those determinations, and after weighing the evidence in the record in aneutral light along with considering the reasonable inferences that can be drawn therefrom, weare not persuaded that the verdict was against the weight of the evidence.
Defendant contends that he was prejudiced by the use at trial of call transcripts that identifiedhim by name as a caller to Jones. The transcripts, which were viewed by the jury when the actualcalls were played, were stipulated by the parties as a demonstrative aid, they were not admittedinto evidence, and County Court gave cautionary instructions regarding the transcripts.Defendant did not object to the use of these transcripts at trial and we decline to exercise ourinterest of justice jurisdiction regarding this issue (see People v Westcott, 84 AD3d 1510, 1513 [2011]; People v Smith, 83 AD3d 1213,1213-1214 [2011]).
We turn next to defendant's arguments that the wiretapped recordings were received intoevidence without being properly authenticated and in violation of his 6th Amendment right toconfrontation. Although defendant raised an authenticity issue in a pretrial motion and preservedit at trial, that challenge was based on the absence of Jones as a witness rather than, as nowasserted, the insufficiency of Guiry's testimony in meeting the foundation requirementsarticulated in People v Ely (68 NY2d 520, 527 [1986]). Had the specific issue been raisedat trial, it could have been addressed and, if necessary, further relevant testimony elicited fromGuiry. The issue is not properly preserved (see People v Smith, 37 AD3d 333, 335 [2007], lv denied 8NY3d 950 [2007]; People v Richardson, 193 AD2d 969, 972 [1993], lv denied82 NY2d 725 [1993]). In any event, reversible error did not occur since Guiry, who monitoredlive calls, testified that he listened to all calls intercepted on the eavesdropping system, he statedthat those calls could not be altered and were sealed once recorded, he listened to calls on therecording admitted into evidence, and those calls were in the exact condition as the ones on theoriginal system (see People vJackson, 43 AD3d 488, 490 [2007], lv denied 9 NY3d 962 [2007]).
The admission into evidence of recordings of the phone conversations between defendantand Jones did not violate defendant's 6th Amendment right to confront a witness. TheConfrontation Clause is implicated when the People attempt to use testimonial evidence of awitness not appearing at trial (see Crawford v Washington, 541 US 36, 53-54 [2004]; People v Duhs, 16 NY3d 405, 408[2011]). The statements by Jones during phone conversations that she did not know were beingrecorded while she negotiated cocaine transactions with defendant were not testimonial in nature(see People v Marshall, 65 AD3d710, 712 [2009], lv denied 13 NY3d 940 [2010]; see generally People v Rawlins, 10 NY3d 136, 148 [2008], certdenied sub nom. Meekins v N.Y., 557 US —, 129 S Ct 2856 [2009]). Further, "thestatements were not hearsay because they were part of the criminal res gestae" (People vMarshall, 65 AD3d at 712).
Comments in the prosecutor's opening statement regarding officers' previous knowledge ofdefendant and proof allegedly suggestive of defendant's prior involvement with the police did notdeprive him of a fair trial. Identity was a key issue at trial and the People relied upon voice andvisual identification of defendant by officers who knew him. Moreover, County Court instructedthe jury after the People's opening statement, during trial and at the close of the case that nothingnegative was to be drawn from police previously knowing defendant, that police knowledge ofdefendant in no way constituted proof of any criminal history, and that such proof was to beconsidered only for the purpose of whether the officers could identify defendant. We [*4]are unpersuaded that prejudicial error resulted from the prosecutor'scomments or the police testimony (seePeople v Jordan, 81 AD3d 528, 529 [2011], lv denied 16 NY3d 860 [2011]).
Defendant contends that his due process right to a fair trial was violated by admittingevidence of phone conversations that occurred prior to February 28, 2009 as well as evidenceobtained from the search of the codefendants' residences. Although defendant objected to thisevidence at trial, he did not do so on the grounds asserted on appeal. Accordingly, the issue hasnot been properly preserved (see Peoplev Grady, 40 AD3d 1368, 1373 [2007], lv denied 9 NY3d 923 [2007]) and, inany event, it is without merit. We have considered and find unavailing defendant's remainingarguments, including that the People constructively amended the indictment and that CountyCourt erred in denying defendant's request for a missing witness charge regarding Jones.
Peters, J.P., Rose, Kavanagh and Garry, JJ., concur. Ordered that the judgment is affirmed.