People v. Acevedo

• Decision Date: 05 December 2013
• Citation: 112 A.D.3d 985,976 N.Y.S.2d 590,2013 N.Y. Slip Op. 08145
• Parties: The PEOPLE of the State of New York, Respondent, v. Hector ACEVEDO, Appellant.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 985

976 N.Y.S.2d 590

2013 N.Y. Slip Op. 08145

The PEOPLE of the State of New York, Respondent,

v.Hector ACEVEDO, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 5, 2013.

Ralph Cherchian, Albany, for appellant.

P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), for respondent.

Before: ROSE, J.P., STEIN, McCARTHY and GARRY, JJ.

McCARTHY, J.

Appeal from a judgment of the County Court of Albany County(Breslin, J.), rendered November 22, 2011, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the second degree.

Defendant met with a confidential informant (hereinafter CI) and gave him a powdered substance containing cocaine in exchange for $1,500.The CI was wearing an audio-visual recording device that recorded the transaction.After a jury trial, defendant was convicted of criminal sale of a controlled substance in the second degree.County Court sentenced him, as a second felony offender, to 12 years in prison, followed by five years of postrelease supervision.Defendant appeals.

The verdict is not against the weight of the evidence.According to the testimony of two forensic scientists, one called by each party, the substance that the CI turned over to the police contained cocaine.The People were required to prove that the substance had “an aggregate weight of one-half ounce or more”(Penal Law § 220.41[1] ).One-half ounce is equal to 14.17 grams.Defendant and the CI initially determined that the substance weighed 15 grams.A forensic scientist with the State Police testified that it weighed 14.46 grams on her balance.That balance is calibrated twice each year and the calibration is verified by an analyst in the laboratory each week.Defendant's independent analyst testified that the substance weighed 13.94 grams on her balance, which is calibrated twice each year and is verified by her daily.A detective had removed a small amount of the substance for a field test and the State Police scientist had removed a small amount to test the substance.Witnesses testified that a small amount of the substance would cling to a plastic bag when transferring it for weighing.Giving deference to the jury's credibility determinations regarding the conflicting evidence as to the weight of the substance ( seePeople v. Parker,84 A.D.3d 1508, 1509–1510, 922 N.Y.S.2d 655[2011], lv. denied18 N.Y.3d 927, 942 N.Y.S.2d 466, 965 N.E.2d 968[2012] ), the weight of the evidence supports the finding that the substance weighed one-half ounce or more.

Although defendant gave the substance to the CI in two portions and the CI combined them into one bag, the People did not need to prove that the separate portions each contained cocaine.Defendant indicated that each portion was cocaine when he sold it to the CI and the crime is not based on the purity of the drug in the substance, as “the aggregate weight of a controlled substance is determined by the weight of the substance which contains the drug, irrespective of the amount of the drug in the substance”(People v. Mendoza,81 N.Y.2d 963, 965, 598 N.Y.S.2d 764, 615 N.E.2d 221[1993][internal quotation marks and citation omitted];seePeople v. Moultrie,100 A.D.3d 401, 401–402, 953 N.Y.S.2d 189[2012], lv. denied20 N.Y.3d 1102, 965 N.Y.S.2d 798, 988 N.E.2d 536[2013] ).

The People proved that the sale occurred on the date listed in the indictment.The CI testified inconsistently as to whether it occurred on the listed date or the following day.The recording had a visual date stamp for the following day.Despite this confusion, three police officers testified that the sale occurred on the listed date and one explained that the recording contained an improper date stamp.The jury reasonably resolved this credibility question to determine that the sale occurred on the listed date.

Although the CI was an admitted drug user, he received benefits—including reduced criminal charges and money—as a result of his cooperation with police and his testimony contained some errors concerning the date, we cannot say that his testimony was incredible as a matter of law ( seePeople v. Wilson,100 A.D.3d 1045, 1046, 952 N.Y.S.2d 837[2012];People v. Williamson,77 A.D.3d 1183, 1184, 909 N.Y.S.2d 817[2010];People v. Heaney,75 A.D.3d 836, 837, 906 N.Y.S.2d 350[2010], lv. denied15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821[2010] ).His testimony, along with the recording of the transaction and the testimony of the police officers and forensic scientists, established beyond a reasonable doubt that defendant committed the alleged crime.

County Court did not err in excluding a log of the verification of the defense expert's balance calibration.Such evidence is not required and was cumulative considering the expert's testimony that she personally verified the calibration each day, including the day that she weighed the substance at issue ( seePeople v. Parker,84 A.D.3d at 1509–1510, 922 N.Y.S.2d 655;People v. Rotundo,194 A.D.2d 943, 946, 599 N.Y.S.2d 322[1993], lv. denied82 N.Y.2d 726, 602 N.Y.S.2d 823, 622 N.E.2d 324[1993];comparePeople v. Freeland,68 N.Y.2d 699, 700–701, 506 N.Y.S.2d 306, 497 N.E.2d 673[1986];People v. English,103 A.D.2d 979, 980, 480 N.Y.S.2d 56[1984] ).Thus, the court did not abuse its discretion by making this evidentiary ruling.

Coun...