People v. JohnsonPeople v. Johnson
Decided and Entered: May 16, 2019
Calendar Date: March 21, 2019
Before: Garry, P.J., Clark, Mulvey, Devine and Rumsey, JJ.
Carolyn B. George, Albany, for appellant.
Letitia James, Attorney General, New York City (Jodi A. Danzig of counsel), for respondent.
MEMORANDUM AND ORDER
Garry, P.J.
Appeal from a judgment of the Supreme Court (Breslin, J.), rеndered May 4, 2017 in Albany County, upon a verdict convicting defendant of the crimes of conspiracy in the second degree, attempted criminal possession of a controlled substance in the third degree and attempted criminal possession of a controlled substance in the fourth degree.
After an investigation by the Attorney General‘s Organized Crime Task Force (hereinafter the task force), defendant and 20 others were charged in a 263-count indictment with crimes related to the possession and sale of illegal narcotics. Specifically, defendant was charged with conspiracy in the second degree, attempted criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and attempted criminal possession
Defendant contends that his convictions for attempted criminal possession of a controlled substance in the third and fourth degrees are against the weight of the evidence in that the People did not prove that he attempted to possess and sell illegal drugs and, with reference to the charge of criminal possession of a controlled substance in the fourth degree, did not prove the weight of the controlled substance. He further asserts that his conviction for conspiracy in the second degree is against the weight of the evidence because the People failed to prove that he committed an overt act in furtherance of the conspiracy2. We reject these claims.
The People‘s evidence established that, in late 2015, the task force obtained eavesdropping warrants to intercept and record cell phone communications relating to the criminal possession and sale of controlled substances by several individuals, including Joseph Rozier, who is defendant‘s half brother. Defendant became an additional target of the investigation when suspicious calls and texts were intercepted between Rozier‘s phone and defendant‘s phone. The evidence at trial consisted primarily of recorded communications in which the People claimed that defendant and Rozier used coded language to plan and discuss various drug transactions. A task force investigator with experience and training in narcotics investigations testified that many terms that appeared in the intercepted communications were typical of terminology commonly used by drug traffickers, such as certain words used to mean cocaine
The investigator testified that defendant was initially identified as a target of the investigation based upon his telephone number. Several witnesses testified that defendant had given them the telephone number that appeared in the recordings as his own, inсluding two police officers who had pulled him over in traffic stops and a representative of his employer, who stated that defendant provided that number on his employment application. The investigator also described various references in the intercepted communications that tended tо identify defendant, including a conversation between Rozier and a female who the People asserted was the mother of defendant and Rozier, and who made identifying references to defendant while using defendant‘s phone. Finally, defendant‘s voice was identified by a City of Albany Police Department detective who testified that he was familiar with defendant‘s appearance and voice because he had spent many years as a foot patrol officer in the neighborhood where defendant lived as a child, had known defendant for more than 10 years as an adult, and had had approximately 50 convеrsations with him, including one within a week before testifying. This detective made an in-court identification of defendant and identified his voice on several recordings that were played for the jury.
With specific reference to defendant‘s convictions for attempted criminal possession of a controlled substance in the third and fourth degrees, the People sought to prove that defendant attempted to possess cocaine with the intent to sell it (see
Wе reject defendant‘s contention that his attempted criminal possession convictions are against the weight of the evidence because the substance that defendant allegedly sought to acquire from Rozier in these communications was never found or subjected to scientific analysis, so that the Pеople failed to prove that it was, in fact, cocaine. Defendant was not convicted of criminal possession of a controlled substance, for which “some additional evidence establishing the existence of [the controlled substance]” in addition to intercepted communications would have been required (People v Martin, 81 AD3d 1178, 1179 [2011], lv denied 17 NY3d 819 [2011]; see People v Williams, 150 AD3d 1315, 1318 [2017], lv denied 30 NY3d 984 [2017]). Defendant‘s convictions were for attempted criminal possession of a controlled substance in the third and fourth degrees, 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
Defendant‘s claim that thе People failed to prove the weight
As for the conviction for conspiracy in the second degree, our review of thе indictment does not support defendant‘s claim that the People were required to prove the commission of one of the listed class A felonies as an overt act in furtherance of the conspiracy (see
Had the jury declined to credit the People‘s evidence as to the meaning of the coded terminology in the intercepted communications, a different verdict would nоt have been unreasonable; thus, this Court “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 Bleakley, 69 NY2d 490, 495 [1987]
Defendant‘s contention that Supreme Court erred in failing to suppress the intercepted communications based upon alleged deficiencies in the eavesdropping warrant and in related procedures of the task force is unpreserved, as it was raised for the first time on this appeal (see People v Smith, 145 AD3d 1631, 1632 [2016], lv denied 29 NY3d 1086 [2017]; see also People v Brooks, 155 AD3d 1429, 1430 n [2017], lvs denied 31 NY3d 981, 985 [2018]). In any event, if the issue had been properly before us, we would not have found that task force investigators failed to conduct the еavesdropping operation “in such a way as to minimize the interception of communications or the making of observations not otherwise subject to eavesdropping” (
Finally, defendant contends that his counsel‘s waiver of a Rodriguez hearing deprived him of meaningful representation, as — in defendant‘s estimation — the People would have been unable to demonstrate at such hearing that the detective‘s identifiсation of his voice was confirmatory, and the identification would have been suppressed. In this regard, a Wade hearing testing the reliability of an out-of-court identification “may be dispensed with where the [identifying] witness knows the defendant so well that police suggestiveness is not a concern” (People v Coleman, 306 AD2d 549, 550 [2003]; see People v Rodriguez, 79 NY2d 445, 449-450 [1992]; People v Carter, 57 AD3d 1017, 1017-1018 [2008], lvs denied 12 NY3d 781 [2009]). At a Rodriguez hearing — conducted to detеrmine whether such a relationship exists — the People bear the burden of proving that an identification is confirmatory based upon such factors as “the number of times the witness saw the defendant prior to the crime, the duration and nature of those encounters, time periods and setting of the viewings, time between thе last viewing and the crime, and whether the two individuals had any
Here, a pretrial Rodriguez hearing was scheduled pertaining to certain visual identifications that did not include the voice identification now at issue, but the hearing was never conducted because defense counsel conceded that the visual identifications were confirmatоry4. Thereafter, shortly before the trial commenced, the People notified Supreme Court and defense counsel by letter that, earlier that day, the detective had identified defendant‘s voice in several of the intercepted phone calls, and asserted that this voice identification was confirmatory based upon his long-standing familiarity with defendant. On the first day of trial, the prosecutor stated that the detective had known defendant for at least 10 years and had spoken to defendant 50 or more times. In response, defense counsel waived a Rodriguez hearing, acknowledging that the detective was very familiar with defendant, knew defendant personally, had spoken with him 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 or she 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 denied 32 NY3d 940 [2018]). The undisputed evidence fully established that the detective was “sufficiently well-acquainted with defendant to make a misidentification unlikely” (People v Carter, 57 AD3d at 1018). Thus, there is little or no chance that a Rodriguez hearing would have led to a determination that the detective‘s identification was not confirmatory, and defendant has not shown that he did not receive meaningful representation (see People v Pichardo, 160 AD3d 1044, 1049 [2018], lv denied 31 NY3d 1151 [2018]).
Clark, Mulvey, Devine and Rumsey, JJ., concur.
ORDERED that the judgment is affirmed.