Opinion
2019-14074 Ind. No. 506/18
12-18-2024
The People of the State of New York, respondent, v. Tyrone Ford, appellant.
Patricia Pazner, New York, NY (Yvonne Shivers of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, NY (Thomas B. Litsky and James Joseph Gandia of counsel), for respondent.
Patricia Pazner, New York, NY (Yvonne Shivers of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Thomas B. Litsky and James Joseph Gandia of counsel), for respondent.
JOSEPH J. MALTESE, J.P., LARA J. GENOVESI, LILLIAN WAN, DONNA-MARIE E. GOLIA, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Mario F. Mattei, J.), rendered November 18, 2019, convicting him of criminal sale of a controlled substance in the third degree (13 counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the convictions under counts 2, 5, and 11 of the indictment, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.
On October 26, 2018, after a long-term investigation by the Staten Island Narcotics Bureau, the defendant was indicted on, inter alia, 16 counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39). As charged in the indictment, on April 26, 2017, May 17, 2017, and September 29, 2017, the defendant allegedly sold a mixture of heroin and fentanyl to an undercover officer. Counts 1, 4, and 10 of the indictment were based on the defendant's alleged sale of heroin on April 26, 2017, May 17, 2017, and September 29, 2017, respectively, while counts 2, 5, and 11 were based on the defendant's alleged sale of fentanyl on those same dates, respectively.
The defendant's contention that the counts 2, 5, and 11 are multiplicitous of counts 1, 4, and 10 is unpreserved for appellate review (see People v Cruz, 96 N.Y.2d 857, 857; People v Edmondson, 191 A.D.3d 1015, 1018). Nevertheless, under the circumstances presented here, we review this contention in the exercise of our interest of justice jurisdiction (see People v Edmondson, 191 A.D.3d at 1018; People v Smalls, 81 A.D.3d 860, 861).
"An indictment is multiplicitous when a single offense is charged in more than one count" (People v Warren, 198 A.D.3d 934, 935; see People v Young, 141 A.D.3d 551, 553). "'Multiplicity does not exist where each count requires proof of an additional fact that the other does not' or where 'a conviction on one count would not be inconsistent with acquittal on the other'" (People v Edmondson, 191 A.D.3d at 1018, quoting People v Saunders, 290 A.D.2d 461, 463). Here, the record reflects that the jury charges regarding counts 1, 4, and 10 of the indictment were essentially identical to the jury charges regarding counts 2, 5, and 11 of the indictment, respectively (see id.; People v Martin, 153 A.D.2d 807, 808). Because Penal Law § 220.39(1) criminalizes the knowing sale of a narcotic drug and treats all narcotic drugs interchangeably, a conviction on one count of criminal sale of a controlled substance in the third degree would be inconsistent with an acquittal on another count of criminal sale of a controlled substance in the third degree where, as here, the defendant allegedly sold a mixture of heroin and fentanyl (see People v Edmondson, 191 A.D.3d at 1018; People v Miller, 15 A.D.3d 265, 265; People v Martin, 153 A.D.2d at 808). As such, those charges were multiplicitous (see People v Edmondson, 191 A.D.3d at 1018). Although the dismissal of the multiplicitous counts will not affect the duration of the defendant's sentence of imprisonment, it is nevertheless appropriate in this case to dismiss counts 2, 5, and 11 in consideration of the stigma attached to the redundant convictions (see People v Alonzo, 16 N.Y.3d 267, 269; People v Edmondson, 191 A.D.3d at 1018).
The defendant contends that evidence of certain uncharged crimes, with regard to which he contends the People should have requested a Ventimiglia hearing (see People v Ventimiglia, 52 N.Y.2d 350, 362), was erroneously admitted. This contention is unpreserved for appellate review, as the defendant neither objected to the testimony when it was adduced nor requested a Ventimiglia ruling at that time, when the Supreme Court still could have conducted a hearing (see CPL 470.05[2]; People v Miller, 229 A.D.3d 724, 725). In any event, this contention is without merit (see People v Miller, 229 A.D.3d at 725).
The defendant further contends that the verdict convicting him under count 14 of the indictment was against the weight of the evidence. "[W]eight of the evidence review requires a court first to determine whether an acquittal would not have been unreasonable. If so, the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence[,] and evaluate the strength of such conclusions. Based on the weight of the credible evidence, the court then decides whether the jury was justified in finding the defendant guilty beyond a reasonable doubt" (People v Danielson, 9 N.Y.3d 342, 348). Great deference is accorded to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 N.Y.3d 383, 410; People v Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt under count 14 of the indictment was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633, 646).
The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80, 86).
In light of our determination, we need not reach the defendant's contentions that his convictions under counts 2, 5, and 11 were based on legally insufficient evidence or that the guilty verdicts under those counts were against the weight of the evidence.
The defendant's remaining contention is without merit.
MALTESE, J.P., GENOVESI, WAN and GOLIA, JJ., concur.