| People v Guzman |
| 2017 NY Slip Op 06454 [153 AD3d 1273] |
| September 13, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joel Guzman, Appellant. |
The Law Offices of Christopher J. Cassar, P.C., Huntington, NY, for appellant.
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 October 7, 2013, convicting him of conspiracy in the second degree, operating as amajor trafficker, criminal sale of a controlled substance in the second degree (two counts), andcriminal possession of a controlled substance in the third degree (two counts), upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, without a hearing, ofthose branches of the defendant's omnibus motion which were to suppress physical evidence andidentification evidence.
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 a wiretapinvestigation pursuant to a series of eavesdropping orders effective from September 23, 2010,through December 2010. Using information obtained from the wiretapped phone calls, the policeconducted surveillance and observed multiple drug transactions. The execution of three searchwarrants resulted in the recovery of multiple sleeves of heroin, drug paraphernalia, and UnitedStates currency. As a result of the investigation, 27 individuals were indicted in connection withthe alleged conspiracy, including the defendant and the codefendant.
At trial, 390 recorded phone calls were played for the jury during the direct examination ofthe lead detective in the investigation. The detective was permitted, over the objections of thedefendant's and the codefendant's attorneys, to testify as to the roles played by the individualsoverheard in the phone calls, the relationships among them, and the meaning of certain terms thathe had discovered in the course of the investigation.
"The validity of an order denying any motion made pursuant to [CPL 210.30 to inspect thegrand jury minutes and to dismiss or reduce an indictment on the ground of insufficiency of thegrand jury evidence] is not reviewable upon an appeal from an ensuing judgment of convictionbased upon legally sufficient trial evidence" (CPL 210.30 [6]), and the defendant here does notchallenge the legal sufficiency of the trial evidence (see People v Smith, 4 NY3d 806, 808 [2005]; People [*2]v Gilleo, 70 AD3d 1049, 1050 [2010]; People v Nealy, 32 AD3d 400, 402[2006]).
Contrary to the defendant's contention, the indictment provided adequate notice regardinggeographic jurisdiction under CPL 20.40 (2) (c). "The defendant has the right at common law andunder the State Constitution to be tried in the county where the crime was committed unless theLegislature has provided otherwise" (People v Ribowsky, 77 NY2d 284, 291 [1991];see People v Moore, 46 NY2d 1, 6 [1978]; People v Goldswer, 39 NY2d 656,659-661 [1976]; NY Const, art I, § 2). "The burden is on the People to prove by apreponderance of the evidence that the county where the crime is prosecuted is the proper venuebecause either the crime was committed there . . . or one of the statutory exceptionsis applicable" (People v Ribowsky, 77 NY2d at 291-292 [citations omitted]; seePeople v Moore, 46 NY2d at 6; People v Tullo, 34 NY2d 712 [1974]). The relevantstatutory exceptions are set forth in CPL 20.40. Pursuant to CPL 20.40 (1), a person may beconvicted of an offense in a particular county when his or her conduct, or the conduct of anotherfor which he or she is legally accountable on a theory of accomplice liability, occurred withinthat county sufficient to establish an element of such offense (see CPL 20.40 [1] [a]) or aconspiracy to commit such offense (see CPL 20.40 [1] [b]). A defendant is responsiblefor the conduct of his or her accomplices in another county if he or she "acted with the requisitemental culpability and intent to assist them in such conduct" (Matter of Silvestro vKavanagh, 98 AD2d 833, 834 [1983]). Even where none of the conduct constituting anoffense has occurred within a particular county, a person may be convicted in that county of theoffense when the "conduct had, or was likely to have, a particular effect upon such county. . . , and was performed with intent that it would, or with knowledge that it waslikely to, have such particular effect therein" (CPL 20.40 [2] [c]; see People v Wilson, 141 AD3d737, 740 [2016]). A "particular effect of an offense" is defined as "a materially harmfulimpact upon the . . . community welfare of a particular jurisdiction" (CPL 20.10[4]).
Here, the indictment alleged, inter alia, that the defendant and the codefendant were directorsof a heroin ring, and that they, directly or through their coconspirators, possessed and sold heroinin Queens and the Bronx for eventual resale to customers in Suffolk County. Contrary to thedefendant's contention, Matter of Steingut v Gold (42 NY2d 311 [1977]) does not standfor any particular "pleading requirements" to be met by an indictment relying upon CPL 20.40(2) (c) for geographic jurisdiction. The indictment in that case was "defective on its face," notbecause it was deficient in its language, but because it relied "on the injured forum statute as itssole jurisdictional base," and CPL 20.40 (2) (c) "could have no application" to the offensescharged in that case (Matter of Steingut v Gold, 42 NY2d at 318). In contrast, the Courtof Appeals cited a case involving "the sale of illicit drugs in one jurisdiction for the purpose ofresale in another" as an example of facts demonstrating "perceptible material harmful impact"(id.), as required for CPL 20.40 (2) (c) to apply.
Moreover, contrary to the defendant's contention, the indictment provided adequate notice ofthe charges against him pursuant to CPL 200.50 (7) (a). The several de minimus errors in thelanguage of the counts in the original indictment were corrected in the amended indictment.Moreover, the County Court providently exercised its discretion in granting leave to the Peopleto amend the indictment, as the defendant was provided with "notice and opportunity to beheard," and the amendments did not "change the theory or theories of the prosecution as reflectedin the evidence before the grand jury which filed such indictment, or otherwise tend to prejudicethe defendant on the merits" (CPL 200.70 [1]).
The County Court correctly found that the voice identification procedure conducted by thelead detective fell under the "confirmatory identification" exception. Therefore, the defendantwas not entitled to a Wade hearing (United States v Wade, 388 US 218 [1967]),or to CPL 710.30 notice (see People vBoyer, 6 NY3d 427, 431-432 [2006]; People v Wharton, 74 NY2d 921 [1989]).Accordingly, the court did not err in denying that branch of the defendant's omnibus motionwhich was to preclude the evidence pursuant to CPL 710.30.
Likewise, the County Court properly denied that branch of the defendant's omnibus motionwhich was for a pretrial hearing on the issue of probable cause for his warrantless arrest andwhether the evidence obtained at the time of the arrest should be suppressed as the fruit of anunlawful seizure. CPL 710.60 (1) provides that a motion to suppress made before trial must statethe [*3]ground or grounds of the motion and contain swornallegations of fact supporting such grounds (see People v Garay, 25 NY3d 62, 71-72 [2015]). "Hearings are notautomatic or generally available for the asking by boilerplate allegations" (People vMendoza, 82 NY2d 415, 422 [1993]). The court may summarily deny the motion if "[t]hemotion papers do not allege a ground constituting legal basis for the motion," or, with twoexceptions not relevant here, "[t]he sworn allegations of fact do not as a matter of law support theground alleged" (CPL 710.60 [3] [a], [b]). "[T]he sufficiency of defendant's factual allegationsshould be (1) [evaluated by] the face of the pleadings, (2) assessed in conjunction with thecontext of the motion, and (3) [evaluated by] defendant's access to information" (People vMendoza, 82 NY2d at 426; see People v Garay, 25 NY3d at 72; People v France, 12 NY3d 790,791 [2009]; People v Jones, 95 NY2d 721, 725 [2001]). Here, in the context of ayear-long investigation, in the face of allegations that he was a major figure in a drug-dealingconspiracy, and where probable cause was generated by police observations of the planning andexecution of numerous drug transactions, the defendant's claim of innocent conduct at the time ofthe arrest was insufficient to establish entitlement to a hearing (see People v Garay, 25NY3d at 72; People v Jones, 95 NY2d at 726; People v Mendoza, 82 NY2d at431). Nor did the defendant meet his initial burden under CPL 710.60 (1) of asserting factsshowing a legitimate expectation of privacy regarding various locations where the policeexecuted several search warrants (seePeople v Scully, 14 NY3d 861, 864 [2010]; People v Wesley, 73 NY2d 351, 359[1989]; People v Ponder, 54 NY2d 160 [1981]). Accordingly, the court properly deniedsuppression of evidence recovered from those locations without a hearing.
As we determined on the codefendant's appeal, while "it was error to permit the prosecutor toelicit testimony [from the investigating detective] as to the roles played by the individualsoverheard in the phone calls . . . and the relationships among them, . . .and the meanings of certain 'case-specific' terms that he had discovered in the course of theinvestigation" (People v Melendez,138 AD3d 758, 759 [2016]; seePeople v Inoa, 25 NY3d 466, 474 [2015]), the error was harmless, "as the proof of thedefendant's commission of the charged crimes was overwhelming, and there is 'no significantprobability that, but for the error, the verdict . . . would have been lessadverse' " (People v Melendez, 138 AD3d at 760, quoting People v Inoa,25 NY3d at 472).
The County Court also improvidently exercised its discretion in admitting into evidence thewiretap court orders. Although the court orders were relevant, as authorizing the wiretapping thatled to a large part of the People's evidence, and their admission had a tendency to prove theexistence of a material fact, i.e., that the wiretapping was authorized (see People vScarola, 71 NY2d 769, 777 [1988]; People v Alvino, 71 NY2d 233, 242 [1987];People v Lewis, 69 NY2d 321, 325 [1987]), that same fact could have been establishedwithout the prejudice they caused. Nevertheless, here, too, the error was harmless.
The defendant's remaining contentions are without merit. Austin, J.P., Hinds-Radix, Duffyand Connolly, JJ., concur.