| People v Whitehead |
| 2015 NY Slip Op 05972 [130 AD3d 1142] |
| July 9, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vNorman Whitehead, Jr., Also Known as Norm, Appellant. |
Matthew C. Hug, Troy, for appellant.
Eric T. Schneiderman, Attorney General, New York City (Lisa Fleischmann ofcounsel), for respondent.
Lahtinen, J.P. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedJuly 30, 2012 in Albany County, upon a verdict convicting defendant of the crimes ofconspiracy in the second degree, criminal sale of a controlled substance in the firstdegree, criminal sale of a controlled substance in the third degree (three counts), criminalpossession of a controlled substance in the first degree, criminal possession of acontrolled substance in the second degree and criminal possession of a controlledsubstance in the third degree (two counts).
Defendant was one of over 30 people named in a 278-count indictment that resultedfrom a narcotics trafficking investigation by the Attorney General's Organized CrimeTask Force. Initially charged in 11 of the counts, he went to trial for nine counts:conspiracy in the second degree (count 1); criminal possession of a controlled substancein the first degree (count 228); criminal possession of a controlled substance in thesecond degree (count 225); criminal possession of a controlled substance in the thirddegree (counts 226 and 229); criminal sale of a controlled substance in the first degree(count 227); and criminal sale of a controlled substance in the third degree (counts 232,244 and 245). The jury found defendant guilty on all nine counts. He was sentenced to anaggregate term of 29 years in prison[FN*] together with terms of postrelease[*2]supervision. Defendant appeals.
We consider first defendant's argument that the conspiracy charge (count 1) and thesale charges (counts 227, 232, 244 and 245) were duplicitous. "An indictment isduplicitous when a single count charges more than one offense" (People v Alonzo, 16 NY3d267, 269 [2011]; see Peoplev Dalton, 27 AD3d 779, 781 [2006], lvs denied 7 NY3d 754, 811[2006]). With respect to the conspiracy charge, the issue was not preserved (see People v Allen, 24 NY3d441, 449-450 [2014]). As to the sale counts, the issue was preserved only as to count232 and, in any event, is unpersuasive as to all the sale counts. Defendant asserts that itwas error to inform the jury that he could be convicted of the sale crime if he sold oroffered to sell cocaine. However, the definition of a sale, which is set forth in a singlestatutory subdivision, includes an offer to sell as well as completing the transaction in asale (see Penal Law § 220.00 [1]), and this does not constitute morethan one offense in a single charge (see People v Giordano, 296 AD2d 714,715-716 [2002], lv denied 99 NY2d 582 [2003]).
Next, we turn to defendant's contention that his convictions were not supported bylegally sufficient evidence and were against the weight of the evidence. "The standard forreviewing the legal sufficiency of evidence in a criminal case is whether after viewingthe evidence in the light most favorable to the prosecution, any rational trier of fact couldhave found the essential elements of the crime beyond a reasonable doubt" (People vFicarrota, 91 NY2d 244, 248 [1997] [internal quotation marks, brackets, emphasisand citations omitted]; see People v Bleakley, 69 NY2d 490, 495 [1987]). In ourweight of the evidence review, where, as here, a different verdict would not have beenunreasonable, we independently view the evidence in a neutral light and weigh therelative strength of the conflicting proof, while giving due deference to the jury'scredibility determinations (see People v Bleakley, 69 NY2d at 495; People v Robinson, 123 AD3d1224, 1226-1227 [2014], lv denied 25 NY3d 992 [2015]; People v Crampton, 45 AD3d1180, 1182 [2007], lv denied 10 NY3d 861 [2008]).
We find merit in defendant's contention that his convictions on counts 244 and 245are not supported by the weight of the evidence. The evidence in support of these twocounts was exceedingly sparse, particularly when considered in light of the significantamount of proof otherwise presented at trial. The evidence as to counts 244 and 245consisted of recordings of two short phone calls—one as to eachcount—and the investigator's very brief explanation at trial of the calls. Theinvestigator stated that the person talking with defendant in the two calls was as an"[u]nknown person" who went by the nickname "Beans." In the first call, Beans stated, "Igot something for you to [sic]. Four zero." And, in the second, he stated, "I'm getting out(Inaudible). Three zero." In each call, the coded language was very cursory, with thepurported relevant statement spoken by Beans and not by defendant. The investigatorstated that he "believe[d]" that Beans was a crack user, and he interpreted Beans' codedcomments as "looking for $40 worth of crack cocaine" in the first call and "$30 worth ofcrack cocaine" in the second. The purported drug transactions were not witnessed, Beansdid not testify (nor was he identified) at trial, no cocaine from the transactions wasproduced and defendant's responses to Beans in the recorded calls do not clearly indicatean intent to sell cocaine. Although it may be feasible to [*3]infer that defendant was invited in these calls to sell $40and $30 worth of crack cocaine, we are unwilling to infer, based on the minimal proofsupporting these charges, that the alleged sales thereafter occurred. We find that theweight of the evidence does not support defendant's guilt as to counts 244 and 245 (see People v Martin, 81 AD3d1178, 1179-1180 [2011], lv denied 17 NY3d 819 [2011]; see also People v Jackson, 121AD3d 1185, 1189 [2014]) and, accordingly, reverse as to such counts.
The remaining convictions are supported by legally sufficient evidence and are notagainst the weight of the evidence. As to such convictions, evidence in the recordincludes, among other things, the recordings of extensive cell phone conversations inwhich defendant set up meetings for and consummated narcotics transactions in differentlocations at various times. Defendant typically used language coded to disguise thenature of the transactions; however, the People presented explanatory testimony by aninvestigator who had expertise regarding dialogue disguised for drug dealings (see People v Inoa, 25 NY3d466, 471-472 [2015]; People v Blackman, 118 AD3d1148, 1150 [2014], lv denied 24 NY3d 1001 [2014]; People v Heard, 92 AD3d1142, 1144 [2012], lv denied 18 NY3d 994 [2012]). Defendant stresses thatthe People failed to recover or produce at trial any cocaine actually possessed by him.Significantly, however, two individuals who had been indicted with defendant eventuallycooperated with the People and testified against defendant. These individuals clearly hadknowledge of cocaine, they were involved in cocaine transactions with defendant andthey indicated that defendant supplied a drug that they used and/or resold and that theyknew to be cocaine (see People v Christopher, 161 AD2d 896, 897 [1990], lvdenied 76 NY2d 786 [1990] ["In situations where the illegal substance is notavailable for analysis, drug users who can demonstrate a knowledge of the narcotic arecompetent to testify"]). Viewed most favorably to the People, legally sufficient evidencewas provided by the combination of, among other proof, the extensive phone records, theexplanation of the drug-related street language used therein, coinciding transactions(some observed by police), and testimony of cooperating witnesses who had beenparticipants in various transactions. In addition, after independently weighing theevidence, the convictions on the remaining counts are supported by the weightthereof.
The further arguments advanced by defendant do not require extended discussion.Defendant's primary theory on appeal for seeking suppression of evidence obtained fromthe eavesdropping warrant was not preserved (see People v DePonceau, 96 AD3d 1345, 1346 [2012],lv denied 19 NY3d 1025 [2012]) and, in any event, Supreme Court did not err indenying such motion. Nor was it error to deny defendant's motion to dismiss theindictment for alleged grand jury improprieties since, viewed in context of the extensivenature of the proof and noting the lack of prejudice to defendant, the prosecutor'sconduct did not give rise to the "drastic, exceptional remedy" of dismissal pursuant toCPL 210.35 (5) (People vSutherland, 104 AD3d 1064, 1066 [2013] [internal quotation marks and citationomitted]). The prosecutor's comments during opening and summation about the law donot require reversal. The comments did not inaccurately state the law and, further, thecourt made clear to the jury that it must accept the law as stated by the court (see People v Bush, 75 AD3d917, 920 [2010], lv denied 15 NY3d 919 [2010]). Given defendant'ssignificant role in widespread drug trafficking and the fact that he was sentenced to lessthan the maximum for his multiple crimes committed at different times, we do not findthat the sentence was unduly harsh or an abuse of discretion (see People v Acevedo, 118AD3d 1103, 1108 [2014]; People v Souffrant, 93 AD3d 885, 887-888 [2012], lvdenied 19 NY3d 968 [2012]; People v Vargas, 72 AD3d 1114, 1120-1121 [2010], lvdenied 15 NY3d 758 [2010]; People v Jackson, 251 AD2d 820, 824 [1998],lv denied 92 NY2d 926 [1998]). We have considered defendant's otherarguments and find them unavailing.
McCarthy, Rose and Clark, JJ., concur. Ordered that the judgment is modified, on thefacts, by reversing defendant's convictions of criminal sale of a controlled substance inthe third degree under counts 244 and 245 of the indictment; said counts dismissed andthe sentences imposed thereon vacated; and, as so modified, affirmed.
Footnote *:Defendant received aprison term of 5 to 15 years on count 1 to run concurrently with all sentences. Counts225 and 226 were concurrent to each other with a longest term of eight years in prison.Consecutive thereto, but concurrent with each other, were counts 227, 228 and 229, witha longest term of 12 years in prison. Consecutive thereto and consecutive to each otherwere the remaining counts—232, 244 and 245—with each being three yearsin prison.