People v. Miranda

• Citation: 578 N.Y.S.2d 160,179 A.D.2d 391
• Parties: The PEOPLE of the State of New York, Respondent, v. Guillermo MIRANDA, Defendant-Appellant.
• Decision Date: 09 January 1992
• Court: New York Supreme Court — Appellate Division

Page 160

578 N.Y.S.2d 160

179 A.D.2d 391

The PEOPLE of the State of New York, Respondent, v. Guillermo MIRANDA, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Jan. 9, 1992.

Before ROSENBERGER, J.P., and WALLACH, ROSS and SMITH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered July 27, 1988, convicting defendant, after a jury trial, of conspiracy in the second degree and criminal possession of a controlled substance in the first degree, and sentencing him to concurrent terms of imprisonment of from 15 years to life and 8 1/3 to 25 years, respectively, unanimously affirmed.

An undercover officer was qualified as an expert, and testified that after he overheard conversations in which defendant arranged for the delivery of a "package" and "photos" in exchange for money, surveillance was established. Surveillance officers observed codefendant, who was not tried with defendant, arrive at defendant's residence carrying a package, leave defendant's residence, go to his own residence, and leave carrying a rectangular package wrapped in brown paper and contained in a plastic bag. This package contained cocaine. The undercover officer testified that "a package" and "photos", considering their context in the conversations in which they were used, were code terms for a cocaine delivery.

The issue of whether there should have been a circumstantial evidence charge is unpreserved because defendant did not request it at trial (CPL 470.05[2]; People v. Alexander, 153 A.D.2d 507, 509, 544 N.Y.S.2d 595, aff'd, 75 N.Y.2d 979, 556 N.Y.S.2d 508, 555 N.E.2d 905), and we decline to reach it. If we were to reach the issue in the interest of justice, we would find it to be without merit. This conviction rested on both direct and circumstantial evidence. The undercover officer's testimony concerning his conclusions concerning defendant's communications was direct evidence of defendant's participation in the conspiracy and indeed control over the operation, and thus established his dominion and control over the cocaine (Penal Law § 220.21[1]. Even if trial counsel had requested a circumstantial evidence charge, it would not have been required (People v. Ruiz, 52 N.Y.2d 929, 437 N.Y.S.2d 665, 419 N.E.2d 343).

By failing to specifically challenge the undercover officer's testimony on the basis that the imparted opinion was not beyond the comprehension of the jury, rendering expert evidence unnecessary, defendant failed to preserve this claim, too (People v. Gonzalez, 55 N.Y.2d 720, 722, 447 N.Y.S.2d 145, 431 N.E.2d 630, cert. denied,456 U.S. 1010, 102 S.Ct. 2304, 73 L.Ed.2d 1306), and we decline to reach it. If we were to reach the issue in the interest of justice, we would find it to be without merit. Under People v. Cronin, 60 N.Y.2d 430, 432-433, 470 N.Y.S.2d 110, 458 N.E.2d 351, expert opinion is admissible in the discretion of the trial court if beneficial to the jury; it need not be essential.

We have sanctioned expert testimony explaining the role of participants in narcotics sales (see, People v. Roman, 171 A.D.2d 562, 567 N.Y.S.2d 445, lv. denied, 77 N.Y.2d 1000, 571 N.Y.S.2d 926, 575 N.E.2d 412), and the uses of narcotics paraphernalia (see, People v. Polanco, 169 A.D.2d 551, 564 N.Y.S.2d 404, lv. denied, 77 N.Y.2d 965, 570 N.Y.S.2d 499, 573 N.E.2d 587). Expert opinion has also been held to be a valid means of explaining code terms used by narcotics dealers (see, United States v. Carmona, 858 F.2d 66, 69 (2nd Cir.)). As an alternative theory of...