| People v Williams |
| 2016 NY Slip Op 02863 [138 AD3d 1233] |
| April 14, 2016 |
| Appellate Division, Third Department |
[*1](April 14, 2016)
| The People of the State of New York,Respondent, v Kenneth Williams, Also Known as Ken,Appellant. |
George J. Hoffman Jr., Albany, for appellant, and appellant pro se.
Eric T. Schneiderman, Attorney General, New York City (Lisa E. Fleischmann ofcounsel), for respondent.
Garry, J. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedSeptember 6, 2012 in Albany County, upon a verdict convicting defendant of the crimesof conspiracy in the second degree, criminal sale of a controlled substance in the firstdegree (two counts), criminal possession of a controlled substance in the first degree andcriminal possession of a controlled substance in the third degree.
Following an investigation by the Attorney General's Organized Crime Task Force,defendant and numerous other individuals were charged in a sweeping indictment withvarious crimes arising from alleged narcotics trafficking. After a superceding indictmentwas consolidated with a conspiracy count from the original indictment, defendanteventually went to trial on six counts: conspiracy in the second degree; criminal sale of acontrolled substance in the first degree (two counts); criminal possession of a controlledsubstance in the first degree; criminal possession of a controlled substance in the thirddegree; and operating as a major trafficker. He was tried jointly with three codefendants,two of whom—Juan Rivera Baez and Lashon Turner—pleaded guiltyduring trial. The third, Norman Whitehead Jr., was found guilty of nine counts, two ofwhich this Court subsequently reversed (People v Whitehead, 130 AD3d 1142 [2015], lvgranted 26 NY3d 1043 [2015]). Defendant was acquitted of operating as a majortrafficker, but found guilty of the remaining five counts. He was sentenced as a secondfelony offender to an aggregate prison term of 42 years and five years of postreleasesupervision.
[*2] Defendant argues that hisconvictions are not supported by legally sufficient evidence and are against the weight ofthe evidence. Initially, we note that, as defendant did not renew the motion to dismiss atthe close of his proof, his argument that the verdict is not supported by legally sufficientevidence is unpreserved (seePeople v Valverde 122 AD3d 1074, 1075 [2014]; People v Smith, 96 AD3d1088, 1088 [2012], lv denied 20 NY3d 935 [2012]). "Nevertheless, sincedefendant also attacks the verdict as against the weight of the evidence, we will considerthe evidence adduced as to each of the elements of the challenged crimes in the contextof that review" (People vVargas, 72 AD3d 1114, 1116 [2010], lv denied 15 NY3d 758 [2010][citation omitted]; see People vRace, 78 AD3d 1217, 1219 [2010], lv denied 16 NY3d 835 [2011]).Where, as here, "it would have been reasonable for the factfinder to reach a differentconclusion, then [we] must, like the trier of fact below, weigh the relative probative forceof conflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony" (People v Romero, 7 NY3d 633, 643 [2006] [internalquotation marks and citation omitted]; see People v Danielson, 9 NY3d 342, 348-349 [2007];People v Bleakley, 69 NY2d 490, 495 [1987]).
The People's proof focused primarily on two purported cocaine transactions. Thefirst of these took place on February 25, 2011 and provided the basis for the first count ofcriminal sale of a controlled substance in the first degree. A second transaction onFebruary 27, 2011 led to the second criminal sale in the first degree count, as well as thecharges of criminal possession of a controlled substance in the first degree and criminalpossession of a controlled substance in the third degree. The first degree sale andpossession charges are the class A felonies that defendant allegedly conspired with othersto perform, underlying the count of conspiracy in the second degree.
Broadly stated, the People's theory was that defendant, who was based in New YorkCity, was a supplier of cocaine to upstate sellers, including codefendant Whitehead, whois his half brother; Whitehead then sold the cocaine obtained from defendant toindividuals in the Albany area, including Carl Goodson and Karashan Mansaray, both ofwhom cooperated with the People. At trial, Dennis Guiry, an investigator with theOrganized Crime Task Force who had extensive experience in narcotics investigations,provided his interpretation of the coded language used in intercepted communicationsamong the individuals involved. On the day before the February 25, 2011 transaction,Whitehead called defendant and, in coded language, discussed purchasing cocaine andthe price per gram. Whitehead was also in contact with Goodson—a user andseller of cocaine who had purchased from Mansaray—and they discussedGoodson's need for a new supplier. On February 25, defendant informed Whitehead thathe had cocaine for him. Whitehead traveled to New York City and was in telephonecontact during the day with defendant and Goodson, who was also in New York City thatday. A drug transaction was discussed and Whitehead met defendant; immediatelythereafter, Whitehead contacted and met with Goodson. Goodson testified that hepurchased 30 grams of cocaine from Whitehead during this meeting and that he usedsome of the product, which he opined was cocaine. Thereafter, separate phoneconversations by Whitehead with Goodson and Mansaray revealed that Whitehead alsocooked 120 grams of cocaine from this transaction into crack cocaine.
With respect to the February 27, 2011 transaction, intercepted calls betweendefendant and Whitehead revealed that, using coded language, Whitehead initially tolddefendant that he wished to purchase 300 grams of cocaine. Whitehead expressedconcern that Mansaray, his potential buyer, was growing impatient and might use anothersupplier; this concern was confirmed by Mansaray himself in other intercepted calls.Mansaray testified that he discussed a purchase of 500 grams of cocaine with Whitehead,and that he was willing to meet defendant, but [*3]Whitehead determined that it would be better if Whiteheaddid so. Defendant and Whitehead discussed meeting at a shopping plaza in OrangeCounty, and Whitehead told defendant that he now wanted 480 grams of cocaine, whichhe planned to combine with an additive bringing it to the 500 grams requested byMansaray. On February 27, defendant and Whitehead were observed by police meetingat the shopping plaza. Whitehead was then followed back to the City of Albany; duringthis trip he called Mansaray, confirmed that everything was "good" and made plans tomeet at a designated location. After stopping briefly at his residence, Whiteheadproceeded to the designated meeting place where, by Mansaray's testimony, Whiteheadsold 500 grams of cocaine to Mansaray.
Defendant argues that his coded language pertained not to cocaine but to marihuana.However, the jury heard and rejected this argument. Defendant further argues that thePeople failed to produce any actual cocaine linked to him. As explained withinWhitehead's appeal from their joint trial, however, witnesses who were involved in thetransactions and had extensive firsthand knowledge about the use of cocaine did confirmthat the substance was, in fact, cocaine. The jury was entitled to credit their testimony(see People v Whitehead, 130 AD3d at 1145). Moreover, as we noted inWhitehead, the People presented proof of intercepted phone calls, explanations ofcoded language, movements and actions by defendant and his coconspirators consistentwith planned transactions discussed in their phone calls, and testimony from individualsinvolved at various levels of the transactions (id. at 1144-1145). Viewing theevidence in a neutral light while according deference to the jury's credibilitydeterminations, the weight of the evidence supports defendant's convictions (see People v Brabham, 126AD3d 1040, 1043 [2015], lv denied 25 NY3d 1160 [2015]; People v Ormsby, 119 AD3d1159, 1160 [2014], lv denied 24 NY3d 963 [2014]).
We reject defendant's contention that evidence obtained from an eavesdroppingwarrant should have been suppressed on the ground that the warrant application wasbased upon false representations by the People. The application was based upon a policedetective's affidavit asserting, among other things, that Whitehead was seen placing aplastic bag in the trunk of his car during the meeting with defendant at the shoppingplaza. The detective who signed the affidavit stated therein that he did not observe thetransaction itself, but viewed a videotape taken by another detective and saw "a plasticbag containing what appears to be cocaine." Following the denial of defendant's omnibusmotion—which had sought to suppress evidence obtained from the eavesdroppingwarrant on other grounds—defendant moved for renewal and submitted enhancedstill photographs taken from the video that, according to defendant, revealed that the itemplaced in the trunk was not a bag of powder, but a jug of windshield washer fluid. Inopposing the motion, the People asserted that all of the prosecutors and law enforcementofficers who saw the video before it was enhanced believed that the object was a plasticbag of cocaine, and that even after defense counsel obtained the enhanced still pictures,some officers continued to believe that the object was a bag.[FN*]
Supreme Court refused to suppress the evidence, finding that whether the item in theenhanced photographs was a bag or a jug was a factual question for the jury, and thatthere was significant other evidence that a drug transfer had taken place, including,among other things, [*4]transcripts of wiretappedconversations among defendant, Whitehead and the other individuals involved in thetransaction and observations of their conduct. The court properly refused to suppress theevidence obtained under the eavesdropping warrant on this basis, as defendant did notmeet his burden to prove that the statements in the warrant application "were knowinglyfalse or made in reckless disregard of the truth" (People v Griffin, 234 AD2d 718,720 [1996], lv denied 89 NY2d 1036 [1997]; see Franks v Delaware, 438US 154, 155-156 [1978]; People v Ronning, 137 AD2d 43, 46 [1988], lvdenied 72 NY2d 866 [1988]). Moreover, even if the statements pertaining to the itemin the trunk were excluded, the affidavit's remaining content was sufficient todemonstrate the existence of probable cause (see Franks v Delaware, 438 US at156). Defendant's remaining appellate challenges to the eavesdropping warrant areunpreserved (see People v Whitehead, 130 AD3d at 1145; People v DePonceau, 96 AD3d1345, 1346 [2012], lv denied 19 NY3d 1025 [2012]).
Supreme Court did not err in denying defendant's request to submit various lesserincluded offenses to the jury. "A defendant is entitled to a lesser included offense chargeupon showing, first, that it is impossible to commit the greater crime without committingthe lesser and, second, that a reasonable view of the evidence supports . . .finding that defendant committed the lesser but not the greater offense" (People v Fairley, 63 AD3d1288, 1289 [2009], lv denied 13 NY3d 743 [2009] [internal quotation marksand citations omitted]; see People v Barney, 99 NY2d 367, 371 [2003]).Defendant argues that his requests for lesser included offenses based upon the weight ofcocaine should have been granted, as no cocaine was recovered and weighed. However,the only proof at trial regarding the quantity of cocaine in each transaction indicated largequantities, establishing the charged first degree crimes. There was no evidence for a juryto conclude that a sale or possession occurred, but for a lesser quantity of cocaine. Thus,"without resorting to speculation, there is no reasonable view of the evidence whichwould support a finding that the defendant committed [the] lesser offense but did notcommit the greater" (People v Lane, 241 AD2d 763, 765 [1997], lvdenied 91 NY2d 875 [1997] [internal quotation marks, brackets and citationomitted]; see People v Flores, 84 NY2d 957, 960 [1994]; People v Acevedo, 118 AD3d1103, 1107 [2014], lv denied 26 NY3d 925 [2015]).
Several of defendant's remaining arguments are essentially the same as those deemedto be unpersuasive in the appeal of his codefendant Whitehead. These include whetherthe conspiracy and sales charges were duplicitous, whether the prosecutor's commentsbefore the jury about the law deprived defendant of a fair trial, and whether there wereimproprieties before the grand jury that merit reversal (People v Whitehead, 130AD3d at 1143). Nothing in defendant's arguments persuades us that these issues shouldbe decided differently upon this appeal.
Defendant raises several arguments regarding his sentence. With respect to hissecond felony offender status, he admitted to a prior federal felony conviction forattempted possession of cocaine with intent to distribute, and his current argument thatthis crime has no New York equivalent is unpreserved (see People v Smith, 73NY2d 961, 962-963 [1989]; seealso People v Jurgins, 26 NY3d 607, 611-612 [2015]). Although defendantreceived a sentence substantially longer than the 10 years offered early in theproceedings, there is no evidence that he was penalized for exercising his right to a jurytrial (see People v Cruz, 131AD3d 724, 728 [2015], lv denied 26 NY3d 1087 [2015]; People v Rodriguez, 121 AD3d1435, 1443 [2014], lv denied 24 NY3d 1122 [2015]; People v Danford, 88 AD3d1064, 1068-1069 [2011], lv denied 18 NY3d 882 [2012]). Defendant'ssentence, while lengthy, did not constitute an abuse of discretion, nor are thereextraordinary circumstances meriting reduction (see People v Grajales, 294 AD2d657, 659 [2002], lv denied 98 NY2d 697 [2002]; People v Valencia, 263AD2d 874, 877 [1999], lv denied 94 NY2d 799 [1999]; People vMorgan, 253 AD2d 946, 946 [1998], lv denied 92 NY2d 950 [1998]).Supreme Court imposed less than the maximum permissible sentence, defendant's [*5]history included a drug-related federal felony convictionand a state felony conviction for possessing a loaded weapon and, as the court stated atsentencing, the transactions underlying the current crimes involved substantial quantitiesof cocaine.
The remaining arguments have been considered and are unavailing.
Peters, P.J., Rose, Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Even at trial, thedetective who observed and videotaped the transaction testified that it was difficult to tellwhat was depicted in the enhanced photographs and that he continued to believe that theitem looked more like a bag than a jug in some of the photos.