People v. PearsonPeople v. Pearson
Mulvey, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered July 31, 2013, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the second degree (four counts), criminal sale of a controlled substance in the third degree and attempted criminal possession of a controlled substance in the third degree (five counts).
Following an investigation by the Attorney General‘s Organized Crime Task Force, defendant was arrested in connection with an alleged conspiracy to possess and sell cocaine and heroin in Albany County, other counties in New York and Vermont. He was charged by two indictments with multiple crimes related to the possession and sale of narcotics. Following a joint jury trial,1 defendant was convicted of four counts of criminal sale of a controlled substance in the second degree (counts 2, 3, 5 and 32), one count of criminal possession of a controlled substance in the third degree (count 6) and five counts of attempted criminal possession of a controlled substance in the third degree (counts 20, 23, 24, 27 and 28).2 He was sentenced as a second violent felony offender to an aggregate prison term of 87 years to be followed by five years of postrelease supervision. Defendant now appeals.
Defendant argues that the guilty verdict with regard to counts 2, 3 and 5 for criminal sale of a controlled substance in the second degree was against the weight of the evidence. Upon our independent weight of the evidence review, we first
Several police officers testified to three controlled buy operations involving defendant in March, April and September 2011. James Wood, a detective with the City of Albany Police Department, testified that he directed a confidential informant (hereinafter Cl) to call defendant to arrange the purchase of $1,000 worth of crack cocaine on each of the three separate occasions, and the conversations were recorded. Wood—who was familiar with defendant and his voice from prior interactions—listened in on the calls and identified defendant‘s voice on the recordings. Before and after each meeting, Wood searched the Cl for contraband and money. On all three dates, defendant met the Cl at the designated location and, under the supervision of several police officers, the Cl briefly entered defendant‘s vehicle, purchased the crack cocaine and then returned to his own vehicle and drove back to police custody. During two of the transactions, other officers, serving as the “eyes” of the operation, identified defendant as the seller. Moreover, during each transaction, the Cl wore a body wire and, despite the poor audio quality of the recordings, Wood was able to identify defendant‘s voice on the recordings and translated the coded drug sale language employed. Following each transaction, the Cl returned with a plastic bag containing crack cocaine weighing more than one-half ounce. Viewing all of the evidence in a neutral light, weighing the conflicting testimony and according deference to the jury‘s credibility determinations, we find that, even if a different verdict would not have been unreasonable, the weight of the evidence fully supports the challenged convictions (see People v Heard, 92 AD3d 1142, 1143-1144 [2012], lv denied 18 NY3d 994 [2012]; People v Morris, 25 AD3d 915, 916-918 [2006], lv denied 6 NY3d 851 [2006]).
Furthermore, we find that County Court did not abuse its
Defendant also claims that County Court erred in delivering a supplemental instruction to the deliberating jury prior to a weekend recess without notice to and consultation with counsel, and that the instruction was coercive. We recently addressed and rejected a similar claim in a decision upholding the convictions of codefendant Guy Anderson (People v Anderson, 149 AD3d 1407, 1415-1416 [2017]). We add that defendant‘s reliance on
Defendant also argues that a litany of trial errors deprived him of a fair trial. We disagree. Defendant‘s contention that County Court erred in denying his motion to discharge an alternate juror who admitted to having read news articles regarding the case is moot, since, as we have noted in a codefendant‘s appeal, the potential juror did not participate in deliberations (see People v Anderson, 149 AD3d at 1414 n 3; People v Haardt, 129 AD3d 1322, 1322 [2015]; People v Rivera, 7 AD3d 358, 359 [2004], lv denied 3 NY3d 741 [2004]). Further, upon receiving a note alleging that members of the jury had fallen asleep during portions of the testimony, the court noted that it had not observed any of the jurors sleeping, but nevertheless issued an instruction for the jury to request breaks when necessary. As defendant did not object to this course of action, his claim of error is unpreserved for our review (see People v Blond, 96 AD3d 1149, 1152-1153 [2012], lv denied 19 NY3d 1101 [2012]; People v Busreth, 35 AD3d 965, 967 [2006], lv denied 8 NY3d 920 [2007]).
Finally, with regard to the sentence, we are persuaded that defendant‘s aggregate sentence of 87 years in prison, although legally permissible, should be reduced in the interest of justice (see
Defendant‘s remaining contentions have been considered and determined to be lacking in merit.
McCarthy, J.P., Egan Jr., Rose and Devine, JJ., concur.
Ordered that