| People v Jones |
| 2017 NY Slip Op 02595 [149 AD3d 407] |
| April 4, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Damian Jones, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Scott M. Danner ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ross D. Mazer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered August 8, 2013,as amended October 2, 2013, convicting defendant, after a jury trial, of enterprise corruption, andsentencing him, as a second felony offender, to a term of 5 to 10 years, unanimouslyaffirmed.
The verdict was supported by legally sufficient evidence, and was not against the weight ofthe evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). The evidence demonstrated the existence of acriminal enterprise (see Penal Law §§ 460.10 [3]; 460.20 [1] [a]), witha common purpose of making money by obtaining stolen motorcycles and reselling them in theUnited States and overseas (People vWright, 139 AD3d 1094, 1098-1100 [3d Dept 2016], lv denied 28 NY3d 939[2016]). There was a sufficiently ascertainable structure in which members of the enterpriseplayed specific roles and worked collaboratively to effectuate the common purpose of theenterprise. There were procurers like defendant, who stole the bikes on the streets, distributors orbrokers who found a market for the bikes, and dealers who resold the stolen bikes in the UnitedStates and overseas. In addition, the enterprise members worked together to swap parts on bikes,alter vehicle identification numbers, and remove any antitheft devices. Bikes were also shippedoverseas, which could only be done through clandestine methods in packing them in shippingcontainers, and which required the coordination of an employed shipper (see People vConigliaro, 290 AD2d 87, 88 [2d Dept 2002], lv denied 98 NY2d 650 [2002]). Inaddition, the enterprise operated for at least well over a year. The evidence demonstrated a levelof coordinated activity that went beyond what would be expected in a mere market, and insteadevinced the existence of a distinct criminal enterprise with a common purpose and ascertainablestructure (see People v Western Express Intl., Inc., 19 NY3d 652, 658-659[2012]).
Regarding defendant's knowledge of and participation in the enterprise, defendant met over40 times with one of the other members, directly interacted with three other members on morethan one occasion, sold four motorcycles on three different dates, and transacted business at hishouse. The evidence warrants an inference that he knew of and intentionally participated in theenterprise (see People v Kancharla,23 NY3d 294, 305-306 [2014]).
[*2] Defendant,who only objected on grounds relating to uncharged crimes and lack of notice thereof, failed topreserve the distinct claim that the People constructively amended the indictment, and we declineto review it in the interest of justice. As an alternative holding, we find no material variancebetween the People's trial theory and the theory alleged in the indictment (see generallyPeople v Grega, 72 NY2d 489, 495-496 [1988]). Where defendant was alleged to haveparticipated in the criminal enterprise by acting as a procurer of stolen motorcycles, admission ofevidence at trial that he altered certain identifying evidence on the stolen motorcycles was not anadditional theory of criminal liability.
We find the repeated mistakes and missteps taken by the prosecution troubling. Nonethelessthe ameliorative action taken by the trial judge, including curative instructions and striking theOctober 24 incident as a pattern act for the enterprise corruption charge, were appropriate toensure that the defendant did not suffer any prejudice (see People v Santiago, 52 NY2d865 [1981]). Concur—Friedman, J.P., Sweeny, Moskowitz, Gische and Kapnick, JJ.