People v. Hill

• Decision Date: 16 February 1995
• Citation: 85 N.Y.2d 256,648 N.E.2d 455,624 N.Y.S.2d 79
• Parties: , 648 N.E.2d 455 The PEOPLE of the State of New York, Respondent, v. Nathaniel HILL, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 79

624 N.Y.S.2d 79

85 N.Y.2d 256, 648 N.E.2d 455

The PEOPLE of the State of New York, Respondent, v. Nathaniel HILL, Appellant.

Court of Appeals of New York.

Feb. 16, 1995.

Edward S. Graves, and Philip L. Weinstein, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. of New York County, New York City (Joseph J. Dawson and Mark Dwyer, of counsel), for respondent.

OPINION OF THE COURT

SMITH, Judge.

In People v. Ryan, 82 N.Y.2d 497, 605 N.Y.S.2d 235, 626 N.E.2d 51 we held that in order to find a defendant guilty of Penal Law § 220.18(5) (criminal possession of a controlled substance in the second degree), the People must prove beyond a reasonable doubt that the defendant had knowledge of both the possession of the substance and its weight. We now hold that, where the issue is fully preserved for our review, the knowledge requirement is applicable to the convictions here for criminal sale of a controlled substance in the second degree (Penal Law § 220.41[1].

This case involves three purchases of narcotics by an undercover agent. On May 17 and June 30, 1988 defendant sold heroin to an undercover detective who was accompanied by a confidential informant. On both occasions, defendant contacted a third party who later arrived with the drugs. At the time of the second sale, the undercover attempted to deal directly with defendant's contact but was told by the contact that deals had to be made with defendant's participation.

On September 26, 1988, the undercover was involved in a third transaction with defendant at a car radio repair shop in Brooklyn. Defendant directed the parties into the shop and, at first, remained outside. Inside, the seller, Andre Colon, dropped the packages of drugs to the floor. The undercover, while kneeling to pick up the drugs, handed the cash to defendant who had entered the shop. Defendant counted it and then handed it to Colon.

At defendant's trial, the only direct evidence of the weight of the drugs was that from the People's witness who used a statistical sampling method to estimate and conclude that there was more than one-half ounce of the drug in both the June 30 and September 26, 1988 sales. At Supreme Court, defendant was convicted of two counts of criminal sale of a controlled substance in the second degree (Penal Law § 220.41[1] and two counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1]. The Appellate Division affirmed 199 A.D.2d 111, 605 N.Y.S.2d 734. That Court rejected defendant's claim that the evidence was insufficient to support his conviction because the People failed to prove, beyond a reasonable doubt, that defendant sold at least one-half ounce of contraband, in accordance with the requirements of Penal Law § 220.41(1). The Court also rejected defendant's challenge to the qualifications of the People's witness to act as an expert because the witness admitted his lack of expertise in statistics.

One Justice dissented, agreeing with defendant that the employment of the statistical sampling method by the People's witness to estimate the weight of the contraband failed to meet the People's burden of proving defendant's culpability for the charged crime beyond a reasonable doubt. Additionally, the dissent concurred with defendant's characterization of his lack of involvement with the sale on September 26, 1988 which resulted in the fifth count of the indictment. The dissenting Justice granted defendant leave to appeal to this Court.

Only the convictions for criminal sale of a controlled substance in the second degree are before us on this appeal. Defendant contends that his convictions for these crimes were obtained in violation of due process because the evidence failed to establish the weight of the contraband and failed to establish that he knew or had reason to know the contraband weighed at least one-half ounce. In addition, he argues that the trial court erred by refusing to instruct the jurors that the People were required to prove his knowledge of the weight of the contraband. Defendant argues that the People did not measure the contents of each of the glassine envelopes and, thus, could not accurately determine whether defendant possessed the amount sufficient to render him culpable under the statute.

The People counter that the proof was legally sufficient to support defendant's second degree sale convictions. They assert that the weight of the contraband was accurately established by the use of the statistical sampling method. Although the People concede that the trial court's jury charge was incorrect, they claim that reversal is not required because defendant's trial was conducted prior to this Court's decision in People v. Ryan. In addition, the People argue that Ryan was a new rule, and a retroactive ruling will have a detrimental impact upon the administration of justice because of the past reliance on the application of the knowledge requirement to possession but not weight.

Initially, we note that the issue was fully preserved for our review by defendant's dismissal motion, asserting that the People failed to establish both the weight of the drugs and defendant's knowledge that the drugs weighed more than one-half ounce (see, People v. Bynum, 70 N.Y.2d 858, 523 N.Y.S.2d 492, 518 N.E.2d 4).

We conclude that, as to weight, the evidence here was sufficient to sustain defendant's conviction. First, notwithstanding defendant's contention, the expert's evidence here was admissible. We have consistently held that " '[e]xpert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror' " (People v. Taylor, 75 N.Y.2d 277, 288, 552 N.Y.S.2d 883, 552 N.E.2d 131, quoting De Long v. County of Erie, 60 N.Y.2d 296, 307, 469 N.Y.S.2d 611, 457 N.E.2d 717; People v. Keindl, 68 N.Y.2d 410, 422, 509 N.Y.S.2d 790, 502 N.E.2d 577). Moreover, "[a]s a general rule the admissibility of expert testimony on a particular point is addressed to the discretion of the trial court" (De Long v. County of Erie, supra, 60 N.Y.2d at 307, 469 N.Y.S.2d 611, 457 N.E.2d 717).

Second, regarding the sufficiency of the evidence itself, in People v. Argro, 37 N.Y.2d 929, 930, 379 N.Y.S.2d 840, 342 N.E.2d 601, we upheld a toxicologist's procedure of selecting 10 envelopes at random from 10 batches of heroin to prove that the defendant possessed one eighth of an ounce or more of a substance containing heroin. Although we observed in Argro that the expert's opinion was received without objection, we also noted that the expert's procedure was made clear to the jury and that all of the actual envelopes were admitted into evidence and physically presented before the jury (id.). We stated, "Under these circumstances we believe that it was for the jury to decide whether the expert had adequately analyzed and weighed the contents and whether his opinion was entitled to be credited" (id.; see also, People v. Rodriguez, 190 A.D.2d 527, 593 N.Y.S.2d 26, lv. denied, 81 N.Y.2d 1019, 600 N.Y.S.2d 207, 616 N.E.2d 864; People v. Nelson, 190 A.D.2d 823, 593 N.Y.S.2d 836, lv. denied, 81 N.Y.2d 974, 598 N.Y.S.2d 776, 615 N.E.2d 233). Similarly, here, the jury was entitled to conclude that the statistical testimony of the witness was sufficient evidence of the weight of the controlled substance.

As to knowledge, the People concede that the trial court's charge was incorrect but argue that it comported with the law at the time and that Ryan is not retroactive. Defendant argues that since the Ryan decision construed the words of a statute for the first time, no new rule was established; that there is a strong presumption in favor of the application of legal principles to all cases pending on direct appeal; and that the Court's ruling was clearly foreshadowed by other rulings.

Penal Law § 220.41(1) states, "A person is guilty of criminal sale of a controlled substance in the second degree when he knowingly and unlawfully sells * * * one or more preparations, compounds, mixtures or substances of an aggregate weight of one-half ounce or more containing a narcotic drug." In People v. Ryan this Court held that the term "knowingly" in Penal Law § 220.18...