People v. Heard

• Decision Date: 23 February 2012
• Citation: 92 A.D.3d 1142,2012 N.Y. Slip Op. 01385,938 N.Y.S.2d 672
• Parties: The PEOPLE of the State of New York, Respondent, v. Antonio HEARD, Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01385
92 A.D.3d 1142
938 N.Y.S.2d 672

The PEOPLE of the State of New York, Respondent,
v.
Antonio HEARD, Appellant.

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

Feb. 23, 2012.

[938 N.Y.S.2d 673]

Jeanne E. Mettler, Copake, for appellant.

Eric T. Schneiderman, Attorney General, New York City (Hannah Stith Long of counsel), for respondent.

Before: PETERS, J.P., ROSE, LAHTINEN, KAVANAGH and GARRY, JJ.

LAHTINEN, J.

[92 A.D.3d 1142] Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered April 1, 2010, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the second degree, criminal possession of a controlled substance in the third degree (two counts) and conspiracy in the fourth degree.

Defendant and four codefendants were indicted in May 2009 for various crimes, including conspiracy in the fourth degree, arising from their alleged conduct in possessing and selling cocaine in Albany

[938 N.Y.S.2d 674]

County. The indictment followed a joint investigation by the Albany Police Department and the Attorney General's Statewide Organized Crime Task Force. The investigation relied heavily upon monitoring phone calls pursuant to eavesdropping warrants and, during the course of the investigation, defendant was identified as an alleged supplier of cocaine to other codefendants for eventual street level sales.

In November 2008, police had begun to monitor the calls of codefendants Steven Fletcher (hereinafter Fletcher) and his brother, Lance Fletcher. By February 2009, police secured an additional eavesdropping warrant to tap the phone of Fletcher's wife, codefendant Ebony Jones, who supplied codefendant Linda Ross with cocaine. On February 28, 2009, police monitored a phone call that Jones had with a supplier. An officer familiar with defendant claimed to recognize defendant's voice as the supplier in the call. Police continued audio and physical surveillance, including monitoring calls between defendant and Jones regarding cocaine transactions and observing defendant meeting Jones at locations discussed in the calls. On March 24, 2009, police executed search warrants at Fletcher and Jones' apartment, where they seized cocaine and over $12,000 in cash, and at Ross' apartment, where cocaine was seized.

[92 A.D.3d 1143] Defendant was arrested in May 2009 and eventually went to trial on charges of one count each of conspiracy in the fourth degree and criminal sale of a controlled substance in the second degree, and two counts of criminal possession of a controlled substance in the third degree. A jury found him guilty of all four counts. He was sentenced, as a predicate felon, to an aggregate 12–year prison term with five years of postrelease supervision. Defendant appeals.

We consider first defendant's argument that the verdict was against the weight of the evidence. Defendant asserts that the weight of the evidence established neither that it was his voice in the pertinent recorded calls with Jones nor that he was the person observed meeting Jones. He further asserts that the weight of the evidence did not support the determination that he was involved in the March 20, 2009 sale, upon which the sale and possession convictions rested. Since a different determination by the jury would have been reasonable, the first step in weight of the evidence analysis is satisfied ( see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). In the second step, we, like the factfinder at trial, “must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions” ( People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). When exercising this factual review, we accord great deference to the jury's “ ‘opportunity to view the witnesses, hear the testimony and observe demeanor’ ” ( People v. Romero, 7 N.Y.3d 633, 644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006], quoting People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

The People's proof included, among other things, 68 wiretapped phone conversations, testimony of police officers involved in the investigation, and surveillance photographs taken of defendant at one of the purported meetings between defendant and Jones. Early in the investigation, police believed that Fletcher was procuring cocaine from a supplier in New York City. When the wiretap was extended to Jones' phone, Investigator Dennis Guiry heard Jones talking to and planning to meet a supplier on February 28, 2009. Guiry attempted to follow Jones as

[938 N.Y.S.2d 675]

she went to meet the supplier, but lost her car. Detective Scott Gavigan, who knew defendant, listened to a recording of the conversation and claimed that he recognized defendant's voice as the other caller. Thereafter, the same caller spoke with Jones on many occasions regarding cocaine transactions, and several times during March 2009 police watched as defendant arrived at meetings that he had arranged with Jones during those conversations.

With respect to the March 20, 2009 transaction, the person [92 A.D.3d 1144] identified by police as...