The People v. Norman Whitehead, Jr.

Mar 28, 2017
18
Versions:

upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).

The Appellate Division concluded that defendant unequivocally invoked his right to counsel and his statements should have been suppressed. Whether a request for counsel is unequivocal presents a mixed question of law and fact (see People v Porter, 9 NY3d 966, 967 [2007]; People v Glover, 87 NY2d 838, 839 [1995]). The Appellate Division‘s reversal therefore was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]). As a result, we have no jurisdiction over this appeal (see id.; see generally People v Brown, 25 NY3d 973, 975 [2015]; People v Polhill, 24 NY3d 995, 997 [2014]).

The People contend that the Appellate Division committed an error of law by conflating the issue of whether defendant‘s request for counsel was unequivocal with the separate issue of whether a letter from defense counsel constituted an entry by counsel into the proceeding (see generally People v Arthur, 22 NY2d 325, 328-329 [1968]). Even assuming for the sake of argument that such a legal error occurred, we cannot conclude that, but for the error, the Appellate Division would not have reversed the judgment (see CPL 450.90 [2] [a]). Before discussing the issue of the letter, the Appellate Division decidedly held that defendant unequivocally invoked his right to counsel (People v Slocum, 133 AD3d 972, 975-976 [3d Dept 2015]). We therefore have no jurisdiction to address the People‘s argument that the Appellate Division improperly conflated the two issues or the Appellate Division‘s conclusion that the letter did not constitute an entry by counsel.

Chief Judge DIFIORE and Judges RIVERA, ABDUS-SALAAM, STEIN, FAHEY and GARCIA concur; Judge WILSON taking no part.

Appeal dismissed upon the ground that the reversal by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]), in a memorandum.

APPEARANCES OF COUNSEL

Hug Law, PLLC, Albany (Matthew C. Hug of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York City (Lisa E. Fleischmann, Barbara D. Underwood and Nikki Kowalski of counsel), for respondent.

OPINION OF THE COURT

MEMORANDUM.

The order of the Appellate Division, insofar as appealed from, should be affirmed.

We reject defendant‘s claim that the evidence was not legally sufficient to support his convictions. Although the People did not recover or introduce any of the cocaine that defendant was charged with possessing, “direct evidence in the form of contraband or other physical evidence is not the only adequate proof” (People v Samuels, 99 NY2d 20, 24 [2002]). The People presented sufficient evidence in the form of, among other things, defendant‘s intercepted phone calls replete with drug-related conversations, visual surveillance, and the testimony of cooperating witnesses. Defendant‘s remaining legal sufficiency claims, including his challenge to the People‘s proof concerning the weight of the drugs, are unpreserved.

We also reject defendant‘s challenge to the People‘s limited remarks during their opening statement regarding the Penal Law definition of “[s]ell” (Penal Law § 220.00 [1]). The People did not misstate the law and, as the trial court reasoned, the unique facts of this case—involving “an agreement” to sell rather than “an actual transaction“—did not conform to the conventional meaning of a “sale.” Moreover, both the People and the trial judge explained that the court—not the attorneys—would instruct the jury on the law. The court therefore did not abuse its discretion by permitting the comments.

Defendant‘s challenge to the People‘s summation is unpreserved, and his claims concerning the grand jury and jury charge are without merit. As to defendant‘s remaining claims, we agree with the Appellate Division that, to the extent they are preserved, defendant‘s claims are without merit.

Chief Judge DIFIORE and Judges RIVERA, ABDUS-SALAAM, STEIN, FAHEY, GARCIA and WILSON concur.

Order, insofar as appealed from, affirmed, in a memorandum.