| People v Johnson |
| 2019 NY Slip Op 03847 [172 AD3d 1628] |
| May 16, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Isaiah Johnson, Appellant. |
Carolyn B. George, Albany, for appellant.
Letitia James, Attorney General, New York City (Jodi A. Danzig of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered May 4, 2017in Albany County, upon a verdict convicting defendant of the crimes of conspiracy in the seconddegree, attempted criminal possession of a controlled substance in the third degree and attemptedcriminal possession of a controlled substance in the fourth degree.
After an investigation by the Attorney General's Organized Crime Task Force (hereinafter thetask force), defendant and 20 others were charged in a 263-count indictment with crimes relatedto the possession and sale of illegal narcotics. Specifically, defendant was charged withconspiracy in the second degree, attempted criminal possession of a controlled substance in thethird degree, criminal possession of a controlled substance in the third degree and attemptedcriminal possession of a controlled substance in the fourth degree.[FN1] Defendant waived Wade andRodriguez hearings. Following a jury trial, he was acquitted of criminal possession of acontrolled substance in the third degree and convicted of the remaining charges. Supreme Courtsentenced him to a prison term of 11 to 22 years on the conviction for conspiracy in the seconddegree and to lesser concurrent terms on the remaining convictions. Defendant appeals.
Defendant contends that his convictions for attempted criminal possession of a controlledsubstance in the third and fourth degrees are against the weight of the evidence in that the Peopledid not prove that he attempted to possess and sell illegal drugs and, with reference to the chargeof criminal possession of a controlled substance in the fourth degree, did not prove the weight ofthe controlled substance. He further asserts that his conviction for conspiracy in the seconddegree is against the weight of the evidence because the People failed to prove that he committedan overt act in furtherance of the conspiracy.[FN2] We reject these claims.
The People's evidence established that, in late 2015, the task force obtained eavesdroppingwarrants to intercept and record cell phone communications relating to the criminal possessionand sale of controlled substances by several individuals, including Joseph Rozier, who isdefendant's half brother. Defendant became an additional target of the investigation whensuspicious calls and texts were intercepted between Rozier's phone and defendant's phone. Theevidence at trial consisted primarily of recorded communications in which the People claimedthat defendant and Rozier used coded language to plan and discuss various drug transactions. Atask force investigator with experience and training in narcotics investigations testified that manyterms that appeared in the intercepted communications were typical of terminology commonlyused by drug traffickers, such as certain words used to mean cocaine and crack cocaine. Theinvestigator's testimony as to the coded terminology was confirmed by witnesses who describedthemselves as drug users and who were participants in some of Rozier's recordedcommunications. In addition to communications between Rozier and defendant, the People alsosubmitted numerous communications between Rozier and others, asserting that theydemonstrated that Rozier regularly used the same coded language that appeared in hiscommunications with defendant to discuss drug transactions.
The investigator testified that defendant was initially identified as a target of the investigationbased upon his telephone number. Several witnesses testified that defendant had given them thetelephone number that appeared in the recordings as his own, including two police officers whohad pulled him over in traffic stops and a representative of his employer, who stated thatdefendant provided that number on his employment application. The investigator also describedvarious references in the intercepted communications that tended to identify defendant, includinga conversation between Rozier and a female who the People asserted was the mother ofdefendant and Rozier, and who made identifying references to defendant while using defendant'sphone. Finally, defendant's voice was identified by a City of Albany Police Department detectivewho testified that he was familiar with defendant's appearance and voice because he had spentmany years as a foot patrol officer in the neighborhood where defendant lived as a child, hadknown defendant for more than 10 years as an adult, and had had approximately 50 conversationswith him, including one within a week before testifying. This detective made an in-courtidentification of defendant and identified his voice on several recordings that were played for thejury.
With specific reference to defendant's convictions for attempted criminal possession of acontrolled substance in the third and fourth degrees, the People sought to prove that defendantattempted to possess cocaine with the intent to sell it (see Penal Law§§ 110.00, 220.16 [1]) and attempted to possess cocaine with an aggregateweight of 3.5 grams or more (see Penal Law §§ 110.00, 220.09 [1]) bysubmitting and playing for the jury a sequence of text messages and phone conversationsbetween defendant and Rozier that took place on January 7, 2016. The investigator testified as tohis interpretation of the coded statements in these communications, opining that defendant toldRozier that he needed 10 grams of crack cocaine to resell to a specific customer, and thatdefendant intended to deliver the cocaine to the customer on a certain street in the City ofAlbany. Rozier responded that he had only six grams of the drug, and he and defendant agreedthat defendant would bring baking soda to Rozier, which Rozier would use to raise the weight ofthe substance to 10 grams. Rozier asked defendant whether he was going to their mother's houseand whether he could obtain baking soda from their mother, and defendant responded, "I'm aboutto go over there." Defendant and Rozier then exchanged several communications indicating thatthey were about to arrive or had arrived at the meeting place. The People introduced cell towertransmission maps indicating that, while these communications were taking place, Rozier wasmoving through the City of Albany toward his mother's address, located in an area where the trialevidence revealed that Rozier often met drug customers.
We reject defendant's contention that his attempted criminal possession convictions areagainst the weight of the evidence because the substance that defendant allegedly sought toacquire from Rozier in these communications was never found or subjected to scientific analysis,so that the People failed to prove that it was, in fact, cocaine. Defendant was not convicted ofcriminal possession of a controlled substance, for which "some additional evidence establishingthe existence of [the controlled substance]" in addition to intercepted communications wouldhave been required (People vMartin, 81 AD3d 1178, 1179 [2011], lv denied 17 NY3d 819 [2011]; see People v Williams, 150 AD3d1315, 1318 [2017], lv denied 30 NY3d 984 [2017]). Defendant's convictions werefor attempted criminal possession of a controlled substance in the third and fourthdegrees, and "the existence of a controlled substance is not an element of [those] crime[s]" (People v Brooks, 127 AD3d 1407,1408 n 2 [2015]; see Penal Law §§ 110.00, 220.16 [1]). Instead, thePeople were required to prove that defendant intended to commit the crimes of criminalpossession of a controlled substance in the third and fourth degrees and that he "committed an actor acts that carried the project forward within dangerous proximity to the criminal end to beattained"—requirements that were satisfied by the People's evidence (People vWarren, 66 NY2d 831, 832 [1985]; see People v Rosica, 199 AD2d 773, 775 [1993],lv denied 83 NY2d 876 [1994]; see also People v Jackson, 121 AD3d 1185, 1188-1189 [2014],lv denied 25 NY3d 1202 [2015]).[FN3]
Defendant's claim that the People failed to prove the weight of the cocaine that he attemptedto possess is similarly premised upon the mistaken theory that the People were required toestablish the actual existence of cocaine in the required quantity. For the reasons discussedabove, and in view of the intercepted communications revealing that defendant intended toacquire at least six grams of crack cocaine from Rozier and took actions that, at minimum,brought him "dangerously near" to doing so, this assertion is without merit (People vKassebaum, 95 NY2d 611, 618 [2001] [internal quotation marks and citations omitted];see Penal Law §§ 110.00, 220.09 [1]).
As for the conviction for conspiracy in the second degree, our review of the indictment doesnot support defendant's claim that the People were required to prove the commission of one ofthe listed class A felonies as an overt act in furtherance of the conspiracy (see Penal Law§§ 105.15, 105.20). "[Such an] overt act must be an independent act that tendsto carry out the conspiracy, but need not necessarily be the object of the crime" (People vRibowsky, 77 NY2d 284, 293 [1991]; accord People v Arroyo, 93 NY2d 990, 992[1999]). Here, the indictment alleged that defendant and the other alleged conspirators committed10 specific overt acts. One of these was a charge that, on January 7, 2016, defendant committedan overt act by telling Rozier that he had a customer waiting and asking Rozier to provide crackcocaine and baking soda—that is, the same actions that formed the basis of defendant'sconvictions for attempted criminal possession of a controlled substance in the third and fourthdegrees, and that the jury found beyond a reasonable doubt that defendant had committed. Thus,the People alleged and proved the requisite overt act in furtherance of the conspiracy (see People v Portis, 129 AD3d1300, 1302 [2015], lv denied 26 NY3d 1091 [2015]; People v Weaver, 157AD2d 983, 984-985 [1990], lv denied 76 NY2d 744 [1990]).
Had the jury declined to credit the People's evidence as to the meaning of the codedterminology in the intercepted communications, a different verdict would not have beenunreasonable; thus, this Court "must, like the trier of fact below, weigh the relative probativeforce of conflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony" (People v Bleakley, 69 NY2d 490, 495 [1987] [internalquotation marks and citation omitted]). Viewing the evidence in a neutral light and deferring tothe jury's "opportunity to view the witnesses, hear the testimony and observe demeanor," we aresatisfied that defendant's convictions are supported by the weight of the evidence (People v Romero, 7 NY3d 633,644 [2006] [internal quotation marks and citation omitted]).
Defendant's contention that Supreme Court erred in failing to suppress the interceptedcommunications based upon alleged deficiencies in the eavesdropping warrant and in relatedprocedures of the task force is unpreserved, as it was raised for the first time on this appeal (see People v Smith, 145 AD3d1631, 1632 [2016], lv denied 29 NY3d 1086 [2017]; see also People v Brooks, 155 AD3d1429, 1430 n [2017], lv denied 31 NY3d 981 [2018]). In any event, if the issue hadbeen properly before us, we would not have found that task force investigators failed to conductthe eavesdropping operation "in such a way as to minimize the interception of communicationsor the making of observations not otherwise subject to eavesdropping" (CPL 700.30 [7]; seePeople v Floyd, 41 NY2d 245, 251-253 [1976]). Likewise, if defendant's claim that thewarrant should have required progress reports to the issuing judge had been preserved, we wouldnot have found that suppression was required "in light of the strong evidentiary showing that areasonable and successful effort to minimize was made" (People v Floyd, 41 NY2d at253; see CPL 700.50 [1]).
Finally, defendant contends that his counsel's waiver of a Rodriguez hearing deprivedhim of meaningful representation, as—in defendant's estimation—the People wouldhave been unable to demonstrate at such hearing that the detective's identification of his voicewas confirmatory, and the identification would have been suppressed. In this regard, aWade hearing testing the reliability of an out-of-court identification "may be dispensedwith where the [identifying] witness knows the defendant so well that police suggestiveness isnot a concern" (People v Coleman, 306 AD2d 549, 550 [2003]; see People vRodriguez, 79 NY2d 445, 449-450 [1992]; People v Carter, 57 AD3d 1017, 1017-1018 [2008], lvdenied 12 NY3d 781 [2009]). At a Rodriguez hearing—conducted todetermine whether such a relationship exists—the People bear the burden of proving thatan identification is confirmatory based upon such factors as "the number of times the witness sawthe defendant prior to the crime, the duration and nature of those encounters, time periods andsetting of the viewings, time between the last viewing and the crime, and whether the twoindividuals had any conversations" (People v Coleman, 306 AD2d at 550; accord People v Casanova, 119 AD3d976, 980 [2014]).
Here, a pretrial Rodriguez hearing was scheduled pertaining to certain visualidentifications that did not include the voice identification now at issue, but the hearing wasnever conducted because defense counsel conceded that the visual identifications wereconfirmatory.[FN4]Thereafter, shortly before the trial commenced, the People notified Supreme Court and defensecounsel by letter that, earlier that day, the detective had identified defendant's voice in several ofthe intercepted phone calls, and asserted that this voice identification was confirmatory basedupon his long-standing familiarity with defendant. On the first day of trial, the prosecutor statedthat the detective had known defendant for at least 10 years and had spoken to defendant 50 ormore times. In response, defense counsel waived a Rodriguez hearing, acknowledgingthat the detective was very familiar with defendant, knew defendant personally, had spoken withhim on multiple occasions and had arrested defendant in the past.
It is well established that "counsel will not be found to be ineffective on the basis that he orshe failed to make an argument or motion that has little or no chance of success" (People v Thorpe, 141 AD3d 927,935 [2016], lv denied 28 NY3d 1031 [2016]; see People v Pratt, 162 AD3d 1202, 1203 [2018], lv denied32 NY3d 940 [2018]). The undisputed evidence fully established that the detective was"sufficiently well-acquainted with defendant to make a misidentification unlikely" (People vCarter, 57 AD3d at 1018). Thus, there is little or no chance that a Rodriguez hearingwould have led to a determination that the detective's identification was not confirmatory, anddefendant has not shown that he did not receive meaningful representation (see People v Pichardo, 160 AD3d1044, 1049 [2018], lv denied 31 NY3d 1151 [2018]).
Clark, Mulvey, Devine and Rumsey, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:The indictment was redacted fordefendant's trial to include only the charges that pertained directly to him.
Footnote 2:To the extent that defendant alsoasserts that his convictions were not supported by legally sufficient evidence, his arguments wereonly partially preserved by his trial motion to dismiss, in which defendant argued that the Peopledid not prove that the substances he had allegedly attempted to possess were illegal drugs, but didnot otherwise specifically raise the claims that he now asserts (see generally People v Van Alphen,167 AD3d 1076, 1077 [2018], lv denied 32 NY3d 1210 [2019]). Nevertheless, "aspart of our weight of the evidence review, we necessarily consider whether all of the elements ofthe charged crimes were proven beyond a reasonable doubt" (People v Hackett, 167 AD3d 1090, 1091 [2018] [internal quotationmarks and citations omitted]; see Peoplev Danielson, 9 NY3d 342, 348-349 [2007]).
Footnote 3:The People's argument thatdefendant intended to acquire crack cocaine from Rozier was also supported by the testimony ofanother witness who testified that he bought cocaine from Rozier on that same date, that thecocaine he purchased was genuine and that he regularly bought drugs from Rozier and had neverfound that they were not genuine. The People further offered proof that Rozier was an establisheddealer of cocaine, including evidence that police seized more than 19 grams of crack cocainefrom Rozier's apartment and nearly seven grams from his person when Rozier was arrested inApril 2016.
Footnote 4:Defendant does not contend onappeal that defense counsel erred in making this concession.