| People v Scott |
| 2015 NY Slip Op 05221 [129 AD3d 1306] |
| June 18, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vSakai Scott, Also Known as Kai, Also Known as Black,Appellant. |
Paul J. Connolly, Delmar, for appellant.
Eric T. Schneiderman, Attorney General, New York City (Lisa E. Fleischmann ofcounsel), for respondent.
Rose, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered March30, 2012 in Albany County, upon a verdict convicting defendant of the crime of criminalsale of a controlled substance in the third degree (three counts).
Defendant was charged with enterprise corruption, three counts of criminal sale of acontrolled substance in the third degree and conspiracy in the second degree as part of amulti-count indictment against numerous members of the Bloods gang involved in anarcotics distribution network. After a jury trial, separate from those of his codefendants,defendant was convicted only of the three counts charging him with criminal sale of acontrolled substance in the third degree. Supreme Court sentenced defendant to threeconsecutive prison terms of six years each, with two years of postrelease supervision, andhe now appeals.
Defendant's contention that the verdict is not supported by legally sufficient evidenceis not preserved for our review inasmuch as he failed to make a motion to dismiss at theclose of the People's case (seePeople v Buchanan, 95 AD3d 1433, 1433 [2012], lv denied 22 NY3d1039 [2013]). Nevertheless, we will evaluate whether the elements of the offense ofcriminal sale of a controlled substance in the third degree (see Penal Law§ 220.39 [1]) were established beyond a reasonable doubt as part of ourweight of the evidence review (see People v Robinson, 123 AD3d 1224, 1225 [2014],lv denied 25 NY3d 992 [2015]; [*2]People v Nichol, 121 AD3d1174, 1176 [2014]).
Robert Guiry, a detective with extensive experience with gang and narcoticsinvestigations, testified that he listened to over 1,000 recordings of wire-tapped phonecalls as part of the investigation into the narcotic distribution network headed bycodefendant Hector Acevedo. Guiry testified that he was familiar with defendant's voicefrom observing and listening to defendant during his booking and arraignment, as well aslistening to his voice on a number of recorded phone calls to and from Acevedo andother members of the Bloods gang. The calls were played for the jury, and the jurors hadthe opportunity to hear defendant's voice on recordings that include multiple instances ofdefendant being identified by his first name. In a series of calls in April 2010, defendantwas heard agreeing to sell cocaine to Acevedo and then proceeding to the place of saleon one occasion and agreeing to sell heroin to Acevedo's customer on another. Thecustomer testified to the completed sale. Detectives also testified that they witnesseddefendant engage in a hand-to-hand exchange on the street with a confidential informant(hereinafter the CI) in June 2010 after the CI called defendant to arrange a controlledpurchase of heroin. Viewing the evidence in a neutral light, and deferring to the jury'scredibility determinations, we are satisfied that the verdict is supported by the weight ofthe evidence (see People v Nichol, 121 AD3d at 1177; People v Wilson, 100 AD3d1045, 1046 [2012], lv denied 22 NY3d 998 [2013]).
The balance of defendant's claims of error were not raised before Supreme Court andare, therefore, unpreserved for our review (see People v Mercado, 113 AD3d 930, 933 [2014], lvdenied 23 NY3d 1040 [2014]; People v Wilson, 100 AD3d at 1048 n; People v Echavarria, 53 AD3d859, 863 [2008], lv denied 11 NY3d 832 [2008]). In any event, we willaddress them because defendant argues that his counsel's failure to register theseobjections deprived him of meaningful representation.
First, we cannot agree that Guiry's isolated comment on direct examination thatdefendant ran a "business selling narcotics" from his residence should have beenobjected to and precluded as prejudicial testimony suggesting a propensity to sell drugs.As reflected in the People's Ventimiglia application, the evidence that defendantengaged in drug sales was not introduced to suggest propensity, but was related to theconspiracy and enterprise corruption charges and, accordingly, no pretrial hearing wasrequired (see People vRodriguez, 121 AD3d 1435, 1440 [2014], lv denied 24 NY3d 1122[2015]). Likewise, evidence of defendant's alleged affiliation with the Bloods gang wasrelevant to the criminal enterprise charge and admissible to provide necessarybackground information regarding the interaction of defendant and the allegedcoconspirators (see People vJohnson, 106 AD3d 1272, 1274 [2013], lv denied 21 NY3d 1043[2013]; People v Collazo,45 AD3d 899, 901 [2007], lv denied 9 NY3d 1032 [2008]).
Next, although defendant now claims that it was prejudicial to have his name listedon the transcripts of the phone calls provided to the jury, he is identified by namemultiple times in calls made to and from the number associated with his cell phone, andhe was seen on video and clearly identified by detectives as the individual responding tothe recorded phone call with the CI. Moreover, defense counsel introduced the transcriptsinto evidence in an apparent, and successful, strategy to defeat the conspiracy andcriminal enterprise charges. Given these circumstances, as well as Supreme Court'sinstruction to the jurors that what they heard on the tapes controlled over what waswritten on the transcripts, we find no error (compare People v Darby, 72 AD3d 1280, 1283 [2010],lv denied 15 NY3d 749 [2010]).
Defendant's claim that his counsel was ineffective for failing to raise these and otherobjections, and to request curative instructions, is unpersuasive inasmuch as "a defendantis not [*3]denied the effective assistance of counsel whencounsel fails to raise issues that have little or no chance of succeeding" (People vRodriguez, 121 AD3d at 1440; see People v Caban, 5 NY3d 143, 152 [2005]). "So long asthe evidence, the law, and the circumstances of a particular case, viewed in totality as ofthe time of the representation, reveal that the attorney provided meaningfulrepresentation, the constitutional requirement will have been met" (People vRobinson, 123 AD3d at 1227-1228 [internal quotation marks and citation omitted];accord People v Henry, 95 NY2d 563, 565 [2000]). Overall, the record reflectsthat counsel pursued a rational strategy, effectively cross-examined the People'switnesses, and delivered cogent opening and closing statements, and he was able toobtain acquittals on two of the charges. Considering the record as a whole, we aresatisfied that defendant received meaningful representation (see People vRobinson, 123 AD3d at 1227-1228; People v Jones, 101 AD3d 1241, 1243 [2012], lvdenied 21 NY3d 944 [2013]; People v Echavarria, 53 AD3d at 864).
Finally, as defendant concedes, consecutive sentences were authorized and thesentences for each count are less than the maximum. Although he does not have asignificant criminal history, Supreme Court properly based the sentence on a review ofdefendant's presentence investigation report and the justifiable conclusion that he was "adrug dealer." Accordingly, we can find no abuse of discretion or extraordinarycircumstances warranting reduction of the sentence (see People v Acevedo, 118 AD3d 1103, 1108 [2014]; People v Burroughs, 64 AD3d894, 898-899 [2009], lv denied 13 NY3d 794 [2009]; compare People v Roberts, 80AD3d 787, 790-791 [2011], lv denied 16 NY3d 862 [2011]). Defendant'sremaining contentions have been considered and found to be unavailing.
Lahtinen, J.P., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.