People v. Portis, 105101

• Decision Date: 18 June 2015
• Docket Number: 105101
• Citation: 129 A.D.3d 1300,12 N.Y.S.3d 328,2015 N.Y. Slip Op. 05219
• Parties: The PEOPLE of the State of New York, Respondent, v. Jamel PORTIS, also known as Flame, Appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1300

12 N.Y.S.3d 328

2015 N.Y. Slip Op. 05219

The PEOPLE of the State of New York, Respondent

v.Jamel PORTIS, also known as Flame, Appellant.

105101

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

June 18, 2015.

James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York City (Nikki Kowalski of counsel), for respondent.

Before: PETERS, P.J., GARRY, ROSE and DEVINE, JJ.

Opinion

DEVINE, J.

Appeal from a judgment of the Supreme Court (Breslin, J.), rendered April 11, 2012 in Albany County, upon a verdict convicting defendant of the crime of conspiracy in the second degree.

Numerous individuals were charged in a 12–count indictment with offenses stemming from their purported participation in a narcotics distribution ring. The sole count pertaining to defendant alleged that he and 14 others committed the crime of conspiracy in the second degree. Defendant's trial was severed from that of the codefendants and, following a jury trial, he was convicted as charged. Supreme Court adjudicated defendant to be a second felony offender and sentenced him to a prison term of 10 to 20 years. Defendant now appeals.

We affirm. Defendant first argues that Supreme Court erred in admitting, over his objections, statements made by his alleged coconspirators. Inasmuch as each participant is deemed responsible for the acts and declarations of the others engaged in a conspiracy, “any declaration by a conspirator made during the course of and in furtherance of the conspiracy is admissible against a coconspirator as an exception to the hearsay rule” (People v. Salko, 47 N.Y.2d 230, 237, 417 N.Y.S.2d 894, 391 N.E.2d 976 [1979] ; see People v. Caban, 5 N.Y.3d 143, 148, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; People v. Bac Tran, 80 N.Y.2d 170, 179, 589 N.Y.S.2d 845, 603 N.E.2d 950 [1992] ). The People may not rely upon that evidence, however, without “showing that a prima facie case of conspiracy has been established” (People v. Bac Tran, 80 N.Y.2d at 179, 589 N.Y.S.2d 845, 603 N.E.2d 950 ). Therefore, the People were obliged to produce otherwise admissible “proof ‘of an agreement to commit a crime and an overt act towards carrying out that agreement’ ” (People v. Nicholas, 118 A.D.3d 1183, 1184, 988 N.Y.S.2d 277 [2014], lvs. denied 24 N.Y.3d 1121, 1122, 3 N.Y.S.3d 762, 763, 27 N.E.3d 476, 477 [2015], quoting People v. Cancer, 16 A.D.3d 835, 839, 791 N.Y.S.2d 207 [2005], lv. denied 5 N.Y.3d 826, 804 N.Y.S.2d 41, 837 N.E.2d 740 [2005] ; see People v. Berkowitz, 50 N.Y.2d 333, 341, 428 N.Y.S.2d 927, 406 N.E.2d 783 [1980] ).

Supreme Court correctly determined that the People met this burden. The indictment alleged that the individuals named therein as the coconspirators had agreed to commit several offenses, but criminal sale of a controlled substance in the second degree was the only underlying crime charged to the jury at defendant's trial. The People, as such, were required to show that defendant was part of a conspiracy to “knowingly and unlawfully sell[ ] ... a narcotic drug ... of an aggregate weight of one-half ounce or more” (Penal Law § 220.41 [1 ] ). Extensive electronic and physical surveillance was conducted as part of the investigation into the trafficking ring, and defendant made statements in recorded telephone conversations that “could be received in evidence as party admissions” (People v. Caban, 5 N.Y.3d at 151 n., 800 N.Y.S.2d 70, 833 N.E.2d 213 ). Defendant specifically engaged in a telephone conversation on April 18, 2010 in which he agreed to meet several of his alleged coconspirators and bring his “paperwork” to the meeting.¹ While defendant was in transit to the meeting, a coconspirator received several telephone calls and made admissible statements “relevant not for [their] truth, but rather as evidence of an agreement to commit the underlying crime” (People v. Caban, 5 N.Y.3d at 149, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; see People v. Salko, 47 N.Y.2d at 239, 417 N.Y.S.2d 894, 391 N.E.2d 976 ). That coconspirator, in particular, agreed to sell a half-ounce of cocaine to a customer who would arrive in a distinctive vehicle. An investigator further testified that he observed the arrival of defendant and other coconspirators at the meeting site, as well as the subsequent arrival of the customer and activity consistent with the agreed-upon cocaine sale. Although circumstantial, this evidence was sufficient to make out a prima facie case against defendant (see People v. Hudson, 90 A.D.3d 437, 438, 933 N.Y.S.2d 674 [2011], lv. denied 19 N.Y.3d 974, 950 N.Y.S.2d 357, 973 N.E.2d 767 [2012] ; People v. Silva, 237 A.D.2d 216, 216, 655 N.Y.S.2d 936 [1997], lv. denied 89 N.Y.2d 1100, 660 N.Y.S.2d 394, 682 N.E.2d 995 [1997] ).

Defendant next contends that the verdict was against the weight of the evidence.² As noted above, a coconspirator sold a half-ounce of cocaine to a customer during a meeting attended by defendant. Indeed, defendant was invited to attend several meetings with the coconspirators and participated in telephone calls regarding their operations. The record contains evidence documenting several large purchases of narcotics by the coconspirators intended for resale, including a May 2010 purchase of over a half-ounce of cocaine by defendant. Further, other intercepted telephone calls and physical surveillance reflected that defendant's coconspirators attempted to or did sell over a half-ounce of narcotics to customers on more than one occasion. It is far from clear that an acquittal would have been a reasonable outcome given this proof (see People v. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). In any case, according due deference to the credibility determinations of the jury, we cannot say that its verdict is against the weight of the evidence (see People v. Romero, 7 N.Y.3d at 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902 ; People v. Calderon, 55 A.D.3d 321, 322, 864 N.Y.S.2d 419 [2008] ; People v. Rojas, 281 A.D.2d 294, 294, 722 N.Y.S.2d 149 [2001], lv. denied 96 N.Y.2d 834, 729 N.Y.S.2d 455, 754 N.E.2d 215 [2001] ).

Defendant also challenges the propriety of the Molineux ruling made by Supreme Court, which permitted the use of wiretap evidence documenting defendant's attendance at meetings with his coconspirators and the contemplated robbery of a drug supplier. Because the indictment provided extensive detail as to the scope and nature of the charged conspiracy, however, evidence of related overt acts was properly admitted “even though they amount[ed] to uncharged crimes” ( People v. Snagg, 35 A.D.3d 1287, 1288, 825 N.Y.S.2d 874 [2006], lvs. denied 8 N.Y.3d 947, 950, 836 N.Y.S.2d 557, 560, 868 N.E.2d 240, 243 [2007] ; see People v. Ribowsky, 77 N.Y.2d 284, 292–293, 567 N.Y.S.2d 392, 568 N.E.2d 1197 [1991] ; People v. Morales, 309 A.D.2d 1065, 1066, 765 N.Y.S.2d 918 [2003], lv. denied 1 N.Y.3d 576, 775 N.Y.S.2d 793, 807 N.E.2d 906 [2003] ).

Defendant further asserts that the Sandoval ruling, in which Supreme Court precluded the People from inquiring into approximately half of the items included in their Sandoval proffer but allowed inquiry into others, constituted an abuse of discretion. Defendant specifically complains of the fact that Supreme Court allowed full inquiry into his 1999 conviction for criminal possession of a weapon in the third degree. Remoteness in time does not “automatically require[ ] preclusion of a prior conviction” (People v. Wilson, 78 A.D.3d 1213, 1215, 910 N.Y.S.2d 276 [2010], lv. denied 16 N.Y.3d 747, 917 N.Y.S.2d 628, 942 N.E.2d 1053 [2011] ; see People v. Smith, 63 A.D.3d 1301, 1304, 880 N.Y.S.2d 760 [2009], lvs. denied 13 N.Y.3d 862, 891 N.Y.S.2d 697, 920 N.E.2d 102 [2009] ), however, and the 1999 conviction was relevant to the issues of defendant's credibility and his willingness to place his own interests above the interests of society (see People v. Riley, 117 A.D.3d 1495, 1496, 984 N.Y.S.2d 735 [2014], lv. denied 24 N.Y.3d 1088, 1 N.Y.S.3d 14, 25 N.E.3d 351 [2014] ; People v. Morris, 101 A.D.3d 1165, 1166, 956 N.Y.S.2d 204 [2012], lv. denied 20 N.Y.3d 1102, 965 N.Y.S.2d 798, 988 N.E.2d 536 [2013] ). Thus, in our view, the Sandoval ruling “appropriately balanced the...