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People v. Lugo

Appellate Division of the Supreme Court of New York, First Department
Oct 2, 2003
309 A.D.2d 512 (N.Y. App. Div. 2003)

Opinion

1699, 1699A

October 2, 2003.

Judgment, Supreme Court, New York County (Leslie Crocker Snyder, J.), rendered February 4, 2000, convicting defendant, upon his plea of guilty, of conspiracy in the second degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously affirmed. Order, same court and Justice, entered on or about January 25, 2002, which denied defendant's motion to vacate the judgment and to set aside the sentence pursuant to CPL 440.10 and 440.20, unanimously affirmed.

Ellen Sue Handman, for respondent.

Allen Fallek Pro Se, for defendant-appellant.

Before: Nardelli, J.P., Mazzarelli, Andrias, Saxe, Williams, JJ.


There was no jurisdictional defect in the conspiracy count of the indictment. Contrary to defendant's argument, the indictment did not charge two separate conspiracies. Instead, it charged one conspiracy to engage in conduct constituting the crime of criminal sale and possession of a controlled substance in the first degree. As illustrated by the overt acts alleged in the indictment, the conspiracy involved the operation of a narcotics-trafficking organization, which included the sale of both heroin and cocaine. The conversations between the other conspirators constituted overt acts which established the existence of this conspiracy (see People v. McGee, 49 N.Y.2d 48, 57-58, cert denied 446 U.S. 942), and the alleged acts, when viewed as a whole, connect defendant to the conspiracy.

In any event, even if the indictment is deemed to have alleged two conspiracies, we find that it sufficiently alleged overt acts establishing a conspiracy to sell cocaine. The conversations between defendant and a co-conspirator established more than a mere agreement to sell cocaine ( see People v. Menache, 98 A.D.2d 335, lv denied, 62 N.Y.2d 622).

Defendant received meaningful representation in connection with his guilty plea ( see People v. Ford, 86 N.Y.2d 397, 404; see also People v. Benevento, 91 N.Y.2d 708, 713-714). Since defendant did not make a suppression motion, he waived his suppression claims (CPL 710.70). We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

People v. Lugo

Appellate Division of the Supreme Court of New York, First Department
Oct 2, 2003
309 A.D.2d 512 (N.Y. App. Div. 2003)
Case details for

People v. Lugo

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DANIEL LUGO…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Oct 2, 2003

Citations

309 A.D.2d 512 (N.Y. App. Div. 2003)
765 N.Y.S.2d 23

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