| People v Blackman |
| 2014 NY Slip Op 04273 [118 AD3d 1148] |
| June 12, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vBilly Joe P. Blackman, Appellant. |
James A. Sacco, Binghamton, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Broome County (Smith,J.), rendered October 22, 2012, upon a verdict convicting defendant of the crimes ofcriminal possession of marihuana in the first degree, criminal sale of marihuana in thefirst degree, criminal possession of marihuana in the fourth degree and unlawfulpossession of marihuana (two counts).
As part of an investigation into a possible large scale marihuana distribution ring inBroome County, State Police obtained eavesdropping warrants in the fall of 2010 tointercept the phone calls of two suspects. Shortly thereafter, police began overhearingcalls from defendant to one of the suspects, Adam Randesi, in which marihuanatransactions were allegedly discussed. Police then obtained a warrant to eavesdrop ondefendant's cell phone. The investigation continued and, subsequently, as defendant andRandesi drove separate vehicles to a rendezvous purportedly involving a marihuanatransaction, both were stopped and arrested. Police recovered over 30 pounds ofmarihuana and $27,000 in cash from Randesi's car and, although there was noinculpatory evidence in defendant's car, upon executing a search warrant at his residence,small quantities of marihuana were seized.
Based upon a theory that he was acting in concert with Randesi, defendant wasindicted for two felonies—criminal possession of marihuana in the first degree andcriminal sale of marihuana in the first degree. He was also charged in the indictment withone misdemeanor and [*2]two violations based upon themarihuana seized at his residence. Defendant was found guilty on all counts by a jury.County Court sentenced him to concurrent three-year prison terms with postreleasesupervision on the two felony convictions, and an unconditional discharge on theremaining three convictions. Defendant appeals.
Defendant argues that his two felony convictions were not supported by legallysufficient evidence and were against the weight of the evidence. He premises thisargument primarily upon a purported lack of proof that he was acting in concert withRandesi. To establish accessorial liability, the People were required to prove thatdefendant acted with the requisite mental culpability for the two felonies and that he"solicit[ed], request[ed], command[ed], importun[ed], or intentionally aid[ed]" Randesiin committing the crimes (Penal Law § 20.00; see People v Bello,92 NY2d 523, 526 [1998]; People v Odom, 36 AD3d 1027, 1028 [2007]; seealso Penal Law §§ 221.30, 221.55). With respect to the criminalsale conviction, the statutory term " 'sell' is defined broadly as 'to sell, exchange,give or dispose of to another, or to offer or agree to do the same' " (People v Davis, 14 NY3d20, 23 [2009], quoting Penal Law § 220.00 [1]; see People vOdom, 36 AD3d at 1028).
Here, evidence included, among other things, recordings of numerous phone calls inwhich defendant was a participant, together with explanations of the street terminologyused therein provided by Norman O'Neil, an experienced police detective who wasinvolved in the investigation. The evidence revealed that defendant made arrangementsto pick up a shipment of marihuana from a supplier in New York City, he and Randesiwent to New York City and returned with marihuana, defendant gave control of theshipment to Randesi, who contacted him upon discovering that the shipment was of poorquality and included 32 pounds of marihuana rather than 36 pounds, and defendant thencalled the supplier and arranged to return the shipment of marihuana. Defendant andRandesi conversed regarding their plans to bring the marihuana back to the supplier andwere approaching in separate cars the place from which they planned to embark on theirtrip to New York City when police stopped and arrested each, discovering over 30pounds of marihuana in Randesi's car. Defendant's participation in the inculpatory callswas confirmed by O'Neil, who recognized defendant's voice, and by matching thenumber of the cell phone seized from defendant upon his arrest with the one that wassubject to the wiretap. Viewed in the light most favorable to the People, the evidence waslegally sufficient to establish defendant's accessorial liability, as well as each element ofthe crimes (see People vMatthews, 101 AD3d 1363, 1366 [2012], lv denied 20 NY3d 1101[2013]). After independently weighing the evidence and considering it in a neutral light,while according deference to the jury's credibility determinations, we find that the verdictwas not against the weight of the evidence (see People v Bleakley, 69 NY2d 490,495 [1987]).
Defendant next argues that O'Neil's testimony regarding the recorded phoneconversations involving defendant went beyond explaining street terminology andinfringed on the jury's fact-finding function. "[A] qualified expert may give testimony toexplain terms and methodologies pertaining to drug activity where necessary to. . . explain information that would otherwise be beyond the knowledge ofthe typical juror" (People v Wright, 283 AD2d 712, 713 [2001], lv denied96 NY2d 926 [2001]; see People v Brown, 97 NY2d 500, 505-506 [2002]).However, "expert testimony which tends to usurp the jury's fact-finding function isinadmissible" (People v Wright, 283 AD2d at 713; see People v Hartzog, 15AD3d 866, 867 [2005], lv denied 4 NY3d 831 [2005]). Here, tapes of therecorded calls were played for the jury, and O'Neil explained some of the terms used andthe nature of the conversation between the parties. Defendant does not contest O'Neil'squalification to render an opinion regarding drug [*3]transactions, and County Court instructed the jury that itwas its function to determine what was being said in the recorded calls and what wasactually transpiring. O'Neil did not directly express opinions about the ultimate issues ofdefendant's intent and knowledge (see People v Wright, 283 AD2d at 714;People v Davis, 235 AD2d 941, 943 [1997], lv denied 89 NY2d 1010[1997]; cf. People v Lamont, 227 AD2d 873, 875 [1996]). We note thatobjections were sustained in certain instances where O'Neil started to veer intoimpermissible testimony and there were no objections as to some of the testimony nowchallenged so as to properly preserve the issue. In any event, we find no reversible erroroccurred regarding O'Neil's testimony (see generally People v Berry, 5 AD3d 866, 867 [2004],lv denied 3 NY3d 637 [2004]).
County Court did not err in denying, without a hearing, defendant's CPL 330.30motion asserting that he did not receive the effective assistance of counsel. Theallegations set forth in the motion as to such issue were "based on matters outside therecord and therefore not properly made pursuant to CPL 330.30 (1)" (People v Hampton, 64 AD3d872, 876 [2009], lv denied 13 NY3d 796 [2009]). Finding neither an abuseof discretion by County Court nor extraordinary circumstances meriting a reduction ofdefendant's sentence, we decline to disturb the sentence (see People v Lerario, 38 AD3d998, 999 [2007], lv denied 9 NY3d 846 [2007]). The remaining argumentshave been considered and lack merit.
Peters, P.J., McCarthy, Garry and Devine, JJ., concur. Ordered that the judgment isaffirmed.