Opinion
105400.
04-14-2016
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 of counsel), for respondent.
George J. Hoffman Jr., Albany, for appellant, and appellant pro se. Eric T. Schneiderman, Attorney General, New York City (Lisa E. Fleischmann of counsel), for respondent.
Before: PETERS, P.J., GARRY, ROSE, DEVINE and CLARK, JJ.
GARRY, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered September 6, 2012 in Albany County, upon a verdict convicting defendant of the crimes of conspiracy in the second degree, criminal sale of a controlled substance in the first degree (two counts), criminal possession of a controlled substance in the first degree and criminal 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 with various crimes arising from alleged narcotics trafficking. After a superceding indictment was consolidated with a conspiracy count from the original indictment, defendant eventually went to trial on six counts: conspiracy in the second degree; criminal sale of a controlled substance in the first degree (two counts); criminal possession of a controlled substance in the first degree; criminal possession of a controlled substance in the third degree; and operating as a major trafficker. He was tried jointly with three codefendants, two of whom—Juan Rivera Baez and Lashon Turner—pleaded guilty during trial. The third, Norman Whitehead Jr., was found guilty of nine counts, two of which this Court subsequently reversed (People v. Whitehead, 130 A.D.3d 1142, 13 N.Y.S.3d 642 [2015], lv. granted 26 N.Y.3d 1043, 22 N.Y.S.3d 173, 43 N.E.3d 383 [2015] ). Defendant was acquitted of operating as a major trafficker, but found guilty of the remaining five counts. He was sentenced as a second felony offender to an aggregate prison term of 42 years and five years of postrelease supervision.
Defendant argues that his convictions are not supported by legally sufficient evidence and are against the weight of the evidence. Initially, we note that, as defendant did not renew the motion to dismiss at the close of his proof, his argument that the verdict is not supported by legally sufficient evidence is unpreserved (see People v. Valverde 122 A.D.3d 1074, 1075, 996 N.Y.S.2d 772 [2014] ; People v. Smith, 96 A.D.3d 1088, 1088, 945 N.Y.S.2d 800 [2012], lv. denied 20 N.Y.3d 935, 957 N.Y.S.2d 695, 981 N.E.2d 292 [2012] ). “Nevertheless, since defendant also attacks the verdict as against the weight of the evidence, we will consider the evidence adduced as to each of the elements of the challenged crimes in the context of that review” (People v. Vargas, 72 A.D.3d 1114, 1116, 898 N.Y.S.2d 323 [2010], lv. denied 15 N.Y.3d 758, 906 N.Y.S.2d 831, 933 N.E.2d 230 [2010] [citation omitted]; see People v. Race, 78 A.D.3d 1217, 1219, 910 N.Y.S.2d 271 [2010], lv. denied 16 N.Y.3d 835, 921 N.Y.S.2d 199, 946 N.E.2d 187 [2011] ). Where, as here, “it would have been reasonable for the factfinder to reach a different conclusion, then [we] must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] [internal quotation marks and citation omitted]; see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Bleakley, 69 N.Y.2d 490, 495 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
The People's proof focused primarily on two purported cocaine transactions. The first of these took place on February 25, 2011 and provided the basis for the first count of criminal sale of a controlled substance in the first degree. A second transaction on February 27, 2011 led to the second criminal sale in the first degree count, as well as the charges of criminal possession of a controlled substance in the first degree and criminal possession of a controlled substance in the third degree. The first degree sale and possession charges are the class A felonies that defendant allegedly conspired with others to perform, underlying the count of conspiracy in the second degree.
Broadly stated, the People's theory was that defendant, who was based in New York City, was a supplier of cocaine to upstate sellers, including codefendant Whitehead, who is his half brother; Whitehead then sold the cocaine obtained from defendant to individuals in the Albany area, including Carl Goodson and Karashan Mansaray, both of whom cooperated with the People. At trial, Dennis Guiry, an investigator with the Organized Crime Task Force who had extensive experience in narcotics investigations, provided his interpretation of the coded language used in intercepted communications among the individuals involved. On the day before the February 25, 2011 transaction, Whitehead called defendant and, in coded language, discussed purchasing cocaine and the price per gram. Whitehead was also in contact with Goodson—a user and seller of cocaine who had purchased from Mansaray—and they discussed Goodson's need for a new supplier. On February 25, defendant informed Whitehead that he had cocaine for him. Whitehead traveled to New York City and was in telephone contact during the day with defendant and Goodson, who was also in New York City that day. A drug transaction was discussed and Whitehead met defendant; immediately thereafter, Whitehead contacted and met with Goodson. Goodson testified that he purchased 30 grams of cocaine from Whitehead during this meeting and that he used some of the product, which he opined was cocaine. Thereafter, separate phone conversations by Whitehead with Goodson and Mansaray revealed that Whitehead also cooked 120 grams of cocaine from this transaction into crack cocaine.
With respect to the February 27, 2011 transaction, intercepted calls between defendant and Whitehead revealed that, using coded language, Whitehead initially told defendant that he wished to purchase 300 grams of cocaine. Whitehead expressed concern that Mansaray, his potential buyer, was growing impatient and might use another supplier; 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 Whitehead determined that it would be better if Whitehead did so. Defendant and Whitehead discussed meeting at a shopping plaza in Orange County, and Whitehead told defendant that he now wanted 480 grams of cocaine, which he planned to combine with an additive bringing it to the 500 grams requested by Mansaray. On February 27, defendant and Whitehead were observed by police meeting at the shopping plaza. Whitehead was then followed back to the City of Albany; during this trip he called Mansaray, confirmed that everything was “good” and made plans to meet at a designated location. After stopping briefly at his residence, Whitehead proceeded to the designated meeting place where, by Mansaray's testimony, Whitehead sold 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 the People failed to produce any actual cocaine linked to him. As explained within Whitehead's appeal from their joint trial, however, witnesses who were involved in the transactions and had extensive firsthand knowledge about the use of cocaine did confirm that the substance was, in fact, cocaine. The jury was entitled to credit their testimony (see People v. Whitehead, 130 A.D.3d at 1145, 13 N.Y.S.3d 642 ). Moreover, as we noted in Whitehead, the People presented proof of intercepted phone calls, explanations of coded language, movements and actions by defendant and his coconspirators consistent with planned transactions discussed in their phone calls, and testimony from individuals involved at various levels of the transactions (id. at 1144–1145, 13 N.Y.S.3d 642 ). Viewing the evidence in a neutral light while according deference to the jury's credibility determinations, the weight of the evidence supports defendant's convictions (see People v. Brabham, 126 A.D.3d 1040, 1043, 4 N.Y.S.3d 386 [2015], lvs. denied 25 N.Y.3d 1160, 1171, 15 N.Y.S.3d 292, 36 N.E.3d 95 [2015] ; People v. Ormsby, 119 A.D.3d 1159, 1160, 989 N.Y.S.2d 688 [2014], lv. denied 24 N.Y.3d 963, 996 N.Y.S.2d 223, 20 N.E.3d 1003 [2014] ).
We reject defendant's contention that evidence obtained from an eavesdropping warrant should have been suppressed on the ground that the warrant application was based upon false representations by the People. The application was based upon a police detective's affidavit asserting, among other things, that Whitehead was seen placing a plastic bag in the trunk of his car during the meeting with defendant at the shopping plaza. The detective who signed the affidavit stated therein that he did not observe the transaction itself, but viewed a videotape taken by another detective and saw “a plastic bag containing what appears to be cocaine.” Following the denial of defendant's omnibus motion—which had sought to suppress evidence obtained from the eavesdropping warrant on other grounds—defendant moved for renewal and submitted enhanced still photographs taken from the video that, according to defendant, revealed that the item placed in the trunk was not a bag of powder, but a jug of windshield washer fluid. In opposing the motion, the People asserted that all of the prosecutors and law enforcement officers who saw the video before it was enhanced believed that the object was a plastic bag of cocaine, and that even after defense counsel obtained the enhanced still pictures, some officers continued to believe that the object was a bag.
Even at trial, the detective who observed and videotaped the transaction testified that it was difficult to tell what was depicted in the enhanced photographs and that he continued to believe that the item looked more like a bag than a jug in some of the photos.
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Supreme Court refused to suppress the evidence, finding that whether the item in the enhanced photographs was a bag or a jug was a factual question for the jury, and that there was significant other evidence that a drug transfer had taken place, including, among other things, transcripts of wiretapped conversations among defendant, Whitehead and the other individuals involved in the transaction and observations of their conduct. The court properly refused to suppress the evidence obtained under the eavesdropping warrant on this basis, as defendant did not meet his burden to prove that the statements in the warrant application “were knowingly false or made in reckless disregard of the truth” (People v. Griffin, 234 A.D.2d 718, 720, 651 N.Y.S.2d 645 [1996], lv. denied 89 N.Y.2d 1036, 659 N.Y.S.2d 866, 681 N.E.2d 1313 [1997] ; see Franks v. Delaware, 438 U.S. 154, 155–156, 98 S.Ct. 2674, 57 L.Ed.2d 667 [1978] ; People v. Ronning, 137 A.D.2d 43, 46, 527 N.Y.S.2d 605 [1988], lv. denied 72 N.Y.2d 866, 532 N.Y.S.2d 516, 528 N.E.2d 906 [1988] ). Moreover, even if the statements pertaining to the item in the trunk were excluded, the affidavit's remaining content was sufficient to demonstrate the existence of probable cause (see Franks v. Delaware, 438 U.S. at 156, 98 S.Ct. 2674 ). Defendant's remaining appellate challenges to the eavesdropping warrant are unpreserved (see People v. Whitehead, 130 A.D.3d at 1145, 13 N.Y.S.3d 642 ; People v. DePonceau, 96 A.D.3d 1345, 1346, 946 N.Y.S.2d 331 [2012], lv. denied 19 N.Y.3d 1025, 953 N.Y.S.2d 558, 978 N.E.2d 110 [2012] ).
Supreme Court did not err in denying defendant's request to submit various lesser included offenses to the jury. “A defendant is entitled to a lesser included offense charge upon showing, first, that it is impossible to commit the greater crime without committing the 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 A.D.3d 1288, 1289, 881 N.Y.S.2d 199 [2009], lv. denied 13 N.Y.3d 743, 886 N.Y.S.2d 97, 914 N.E.2d 1015 [2009] [internal quotation marks and citations omitted]; see People v.
Barney, 99 N.Y.2d 367, 371, 756 N.Y.S.2d 132, 786 N.E.2d 31 [2003] ). Defendant argues that his requests for lesser included offenses based upon the weight of cocaine 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 large quantities, establishing the charged first degree crimes. There was no evidence for a jury to 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 which would support a finding that the defendant committed [the] lesser offense but did not commit the greater” (People v. Lane, 241 A.D.2d 763, 765, 660 N.Y.S.2d 890 [1997], lv. denied 91 N.Y.2d 875, 668 N.Y.S.2d 574, 691 N.E.2d 646 [1997] [internal quotation marks, brackets and citation omitted]; see People v. Flores, 84 N.Y.2d 957, 960, 620 N.Y.S.2d 823, 644 N.E.2d 1379 [1994] ; People v. Acevedo, 118 A.D.3d 1103, 1107, 987 N.Y.S.2d 660 [2014], lv. denied 26 N.Y.3d 925, 17 N.Y.S.3d 88, 38 N.E.3d 834 [2015] ).
Several of defendant's remaining arguments are essentially the same as those deemed to be unpersuasive in the appeal of his codefendant Whitehead. These include whether the conspiracy and sales charges were duplicitous, whether the prosecutor's comments before the jury about the law deprived defendant of a fair trial, and whether there were improprieties before the grand jury that merit reversal (People v. Whitehead, 130 A.D.3d at 1143, 13 N.Y.S.3d 642 ). Nothing in defendant's arguments persuades us that these issues should be decided differently upon this appeal.
Defendant raises several arguments regarding his sentence. With respect to his second felony offender status, he admitted to a prior federal felony conviction for attempted possession of cocaine with intent to distribute, and his current argument that this crime has no New York equivalent is unpreserved (see People v. Smith, 73 N.Y.2d 961, 962–963, 540 N.Y.S.2d 987, 538 N.E.2d 339 [1989] ; see also People v. Jurgins, 26 N.Y.3d 607, 611–612, 26 N.Y.S.3d 495, 46 N.E.3d 1048 [2015] ). Although defendant received a sentence substantially longer than the 10 years offered early in the proceedings, there is no evidence that he was penalized for exercising his right to a jury trial (see People v. Cruz, 131 A.D.3d 724, 728, 14 N.Y.S.3d 804 [2015], lv. denied 26 N.Y.3d 1087, 23 N.Y.S.3d 644, 44 N.E.3d 942 [2015] ; People v. Rodriguez, 121 A.D.3d 1435, 1443, 995 N.Y.S.2d 785 [2014], lv. denied 24 N.Y.3d 1122, 3 N.Y.S.3d 764, 27 N.E.3d 478 [2015] ; People v. Danford, 88 A.D.3d 1064, 1068–1069, 931 N.Y.S.2d 137 [2011], lv. denied 18 N.Y.3d 882, 939 N.Y.S.2d 752, 963 N.E.2d 129 [2012] ). Defendant's sentence, while lengthy, did not constitute an abuse of discretion, nor are there extraordinary circumstances meriting reduction (see People v. Grajales, 294 A.D.2d 657, 659, 742 N.Y.S.2d 687 [2002], lv. denied 98 N.Y.2d 697, 747 N.Y.S.2d 415, 776 N.E.2d 4 [2002] ; People v. Valencia, 263 A.D.2d 874, 877, 695 N.Y.S.2d 186 [1999], lv. denied 94 N.Y.2d 799, 700 N.Y.S.2d 433, 722 N.E.2d 513 [1999] ; People v. Morgan, 253 A.D.2d 946, 946, 680 N.Y.S.2d 120 [1998], lv. denied 92 N.Y.2d 950, 681 N.Y.S.2d 481, 704 N.E.2d 234 [1998] ). Supreme Court imposed less than the maximum permissible sentence, defendant's history included a drug-related federal felony conviction and a state felony conviction for possessing a loaded weapon and, as the court stated at sentencing, the transactions underlying the current crimes involved substantial quantities of cocaine.
The remaining arguments have been considered and are unavailing.
ORDERED that the judgment is affirmed.
PETERS, P.J., ROSE, DEVINE and CLARK, JJ., concur.