| People v Melendez |
| 2016 NY Slip Op 02667 [138 AD3d 758] |
| April 6, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Carlos Melendez, Appellant. |
Robert C. Mitchell, Riverhead, NY (Louis E. Mazzola of counsel), forappellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Alfred J. Croce of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Efman, J.), rendered August 15, 2013, convicting him of conspiracy in the seconddegree, operating as a major trafficker, criminal sale of a controlled substance in thesecond degree, and criminal possession of a controlled substance in the third degree (twocounts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant and a codefendant were arrested after a year-long investigation into asuspected heroin ring operating in Suffolk County. Suffolk County police conducted awiretap investigation pursuant to a series of eavesdropping orders effective fromSeptember 23, 2010, through December 2010. Using information obtained from thewiretapped phone calls, the police conducted surveillance and observed multiple drugtransactions. The execution of three search warrants resulted in the recovery of multiplesleeves of heroin, drug paraphernalia, and United States currency. As a result of theinvestigation, 27 individuals were indicted in connection with the alleged conspiracy,including the defendant and the codefendant.
The defendant contends, inter alia, that the County Court erred by, in effect,
permitting the lead detective in the investigation to testify as an expert, not onlyregarding various aspects and practices of the illegal drug trade in general, but as to therelationships among the individuals overheard on the phone calls in this case, and themeanings of terms specific to this case, which he knew only as a result of his ownparticipation in the investigation. It was proper to permit the detective to describe certainpractices and define certain terms that have a "fixed meaning . . . within thenarcotics world" (People vInoa, 25 NY3d 466, 474 [2015] [internal quotation marks omitted]). However, itwas error to permit the prosecutor to elicit testimony as to the roles played by theindividuals overheard in the phone calls, and the relationships among them, for example,that several were "runners or workers" for the defendant or codefendant, and themeanings of certain "case-specific" terms that he had discovered in the course of theinvestigation. As the Court of Appeals cautioned in People v Inoa, where, ashere, "the trial court qualifie[s] a government agent, intimately involved in theinvestigation of the case and development of the prosecution, to testify as an expert,"there is a danger that the agent will end up "testifying beyond any cognizable field ofexpertise as an apparently omniscient expositor of the facts of the case" (id. at473), thereby usurping the role of [*2]the jury. Alsoimproper was the testimony, elicited by the prosecutor from members of the surveillanceteams who observed the defendant and his associates at the locations described in thephone calls, that what they witnessed was consistent with a drug transaction (seePeople v Brown, 97 NY2d 500, 506 [2002]). Nevertheless, we find that theimproperly admitted testimony was harmless, as the proof of the defendant's commissionof the charged crimes was overwhelming, and there is "no significant probability that, butfor the error, the verdict . . . would have been less adverse" (People vInoa, 25 NY3d at 472, citing People v Crimmins, 36 NY2d 230, 242[1975]).
The defendant contends that the evidence of his guilt was legally insufficient. Thedefendant's argument is based solely on the detective's identification of the defendant'svoice in the phone calls played for the jury, which the defendant contends was unreliableas a matter of law. Viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legallysufficient to establish the defendant's guilt. Contrary to the defendant's contention, thedetective's testimony that he had listened to all the calls prior to testifying, and hadspoken with the defendant in person for a few minutes after his arrest on December 9,2010, was sufficient to permit the jurors to conclude beyond a reasonable doubt that thedefendant was the speaker on those calls where the detective identified his voice (see generally People vGouveia, 88 AD3d 814, 815 [2011]; United States v Albergo, 539 F2d860, 864 [2d Cir 1976]). Alternatively, the defendant contends that the detective'stestimony should be given little weight, and that, therefore, the verdict was against theweight of the evidence. In fulfilling our responsibility to conduct an independent reviewof the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342, 348 [2007]), we nevertheless accord great deference to the jury's opportunity toview the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict was not against theweight of the evidence. Specifically, the detective's identification of the defendant's voicein the taped calls was based not only on his own personal experience of the defendantand his voice (see People v Gouveia, 88 AD3d at 815), but also on extensiveevidence corroborating his identification testimony, including calls in which the otherparticipant identified him by name, and testimony of members of surveillance teams whoobserved the defendant carrying out plans he had just discussed in phone calls.
The defendant further contends that the transcripts of the intercepted calls, which thejury was permitted to use as an aid, unduly enhanced the credibility of the detective'sidentification of the speakers. While including the names of the purported speakers in thewritten transcripts may not have been the best practice, it did not unduly prejudice thedefendant in this case, since the People presented a witness who made voiceidentifications from the witness stand (see United States v Chiarizio, 525 F2d289, 294 [2d Cir 1975]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80,85 [1982]). Rivera, J.P., Dillon, Chambers and Dickerson, JJ., concur.