THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v NORMAN WHITEHEAD, JR., Also Known as NORM, Appellant.
Supreme Court, Appellate Division, Third Department, New York
129 A.D.3d 1142, 13 N.Y.S.3d 642
[13 NYS3d 642]
Defendant was one of over 30 people named in a 278-cоunt indictment that resulted from a narcotics trafficking investigation by the Attorney General’s Organized Crime Task Force. Initially charged in 11 of the counts, he went to trial for nine counts: conspiracy in the second degree (count 1); criminal possession of a controlled substance in the first degree (count 228); criminal possession of a controlled substance in the second
We consider first defendant’s argument that the conspiracy charge (count 1) and the sale charges (counts 227, 232, 244 and 245) were duplicitous. “An indictment is duplicitous when a single count charges more than one offense” (People v Alonzo, 16 NY3d 267, 269 [2011]; see People v Dalton, 27 AD3d 779, 781 [2006], lvs denied 7 NY3d 754, 811 [2006]). With respect to the conspiracy charge, the issue was not preserved (see People v Allen, 24 NY3d 441, 449-450 [2014]). As to the sale counts, the issue was preserved only as to count 232 and, in any event, is unpersuasive as to all the sale counts. Defendant asserts that it was error to inform the jury that he could be convicted of the sale crime if he sold or offered to sell cocainе. However, the definition of a sale, which is set forth in a single statutory subdivision, includes an offer to sell as well as completing the transaction in a sale (see
Next, we turn to defendant’s contention that his convictions were not supported by legally sufficient evidence and were аgainst the weight of the evidence. “The standard for reviewing the legal sufficiency of evidence in a criminal case is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (People v Ficarrota, 91 NY2d 244, 248 [1997] [internal quotation marks, brackets, еmphasis and citations omitted]; see People v Bleakley, 69 NY2d 490, 495 [1987]). In our weight of the evidence review, where, as here, a different verdict would not have been unreasonable, we independently view the еvidence in a neutral light and weigh the relative strength of the
We find merit in defendant’s contention that his convictions on counts 244 and 245 are not supported by the weight of the evidence. The evidence in support of these two counts was exceedingly sparse, particularly when considered in light of the significant amount of proof otherwise presented at trial. The evidence as to counts 244 and 245 consisted of recordings of two short phone calls—one as to each count—and the investigator’s very brief explanation at trial of the calls. The investigator stated that the person talking with defendant in the two calls was as an “[u]nknоwn person” who went by the nickname “Beans.” In the first call, Beans stated, “I got something for you to [sic]. Four zero.” And, in the second, he stated, “I’m getting out (Inaudible). Three zero.” In each call, the coded language was very cursory, with the purported relevant statement spoken by Beans and not by defendant. The investigator stated that he “believe[d]” that Beans was a crаck user, and he interpreted Beans’ coded comments as “looking for $40 worth of crack cocaine” in the first call and “$30 worth of crack cocaine” in the second. Thе purported drug transactions were not witnessed, Beans did not testify (nor was he identified) at trial, no cocaine from the transactions was produced and defendant’s responses to Beans in the recorded calls do not clearly indicate an intent to sell cocaine. Although it may be feasible to infer that defendant was invited in these calls to sell $40 and $30 worth of crack cocaine, we are unwilling to infer, based on the minimal proof supporting these charges, that the alleged sales thereafter occurred. We find that the wеight of the evidence does not support defendant’s guilt as to counts 244 and 245 (see People v Martin, 81 AD3d 1178, 1179-1180 [2011], lv denied 17 NY3d 819 [2011]; see also People v Jackson, 121 AD3d 1185, 1189 [2014]) and, accordingly, reverse as to such counts.
The remaining convictions are supported by legally sufficient evidence and are not agаinst the weight of the evidence. As to such convictions, evidence in the record includes, among other things, the recordings of extensive cell phone conversations in which defendant set up meetings for and consummated narcotics transactions in different locations at various times. Defendant typically used language coded to disguise the nature of the transactions; however, the People presented explanatory
The further arguments advanced by defendant do not require extended discussion. Defendant’s primary theory on appeal for seeking suppression of evidence obtained from the eavesdropping warrant was not preservеd (see People v DePonceau, 96 AD3d 1345, 1346 [2012], lv denied 19 NY3d 1025 [2012]) and, in any event, Supreme Court did not err in denying such motion. Nor was it error to deny defendant’s motion to dismiss the indictment for alleged grand jury improprieties since, viewed in context of the extensive nature of the proof and noting the lack of prejudice to defendant, the prosecutor’s conduct did not give rise to the “drastic, exceptional remedy” of dismissal pursuant to
McCarthy, Rose and Clark, JJ., concur. Ordered that the judgment is modified, on the facts, by reversing defendant’s convictions of criminal sale of a controlled substance in the third degree under counts 244 and 245 of the indictment; said counts dismissed and the sentences imposed thereon vacated; and, as so modified, affirmed.