People v. Rodriguez
| Decision Date | 30 October 2014 |
| Citation | 2014 N.Y. Slip Op. 07389,995 N.Y.S.2d 785,121 A.D.3d 1435 |
| Court | New York Supreme Court — Appellate Division |
| Parties | The PEOPLE of the State of New York, Respondent, v. Jose A. RODRIGUEZ, Appellant. |
Matthew C. Hug, Troy, for appellant.
John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), for respondent.
Before: PETERS, P.J., STEIN, GARRY, EGAN JR. and CLARK, JJ.
Appeal from a judgment of the County Court of Otsego County (Burns, J.), rendered December 22, 2011, upon a verdict convicting defendant of the crimes of operating as a major trafficker and criminal sale of a controlled substance in the third degree (four counts).
Following a lengthy police investigation, defendant, a resident of the Bronx, was charged with various crimes arising out of his alleged management of a heroin distribution ring in Otsego County. He was tried by a jury and convicted of the crime of operating as a major trafficker, as well as four counts of criminal sale of a controlled substance in the third degree.1 County Court denied defendant's motion to set aside the verdict and sentenced him to a prison term of 20 years with five years of postrelease supervision on the major trafficking count and four five-year prison terms, each with three years of postrelease supervision, on the criminal sale counts, all sentences to be served consecutively. Defendant appeals.
Defendant contends that his convictions were not supported by legally sufficient evidence and were against the weight of the evidence, basing these arguments primarily upon the claim that the People relied upon inadequately corroborated accomplice testimony. As an initial matter, the corroboration argument is preserved only as to the charge of operating as a major trafficker, as defendant specifically raised that claim when he moved to dismiss the trafficking charge at the close of proof, but did not include it in his more general motion to dismiss the other charges (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; People v. Hilliard, 49 A.D.3d 910, 912, 853 N.Y.S.2d 198 [2008], lv. denied 10 N.Y.3d 959, 863 N.Y.S.2d 143, 893 N.E.2d 449 [2008] ). Nevertheless, in assessing defendant's claim that all of his convictions are against the weight of the evidence, this Court necessarily determines whether each element of the crimes was proven beyond a reasonable doubt (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Gaudiosi, 110 A.D.3d 1347, 1348, 973 N.Y.S.2d 855 [2013], lv. denied 22 N.Y.3d 1040, 981 N.Y.S.2d 374, 4 N.E.3d 386 [2013] ).
Penal Law § 220.77, which established the crime of operating as a major trafficker, was enacted as part of the Drug Law Reform Act of 2009 (). As pertinent here, a person commits the crime of operating as a major trafficker when he or she “acts as a director of a controlled substance organization” during a period of 12 months or less in which the organization sells a controlled substance or substances, and the proceeds due or collected from such sales have a total value of at least $75,000 (Penal Law § 220.77[1] ). A controlled substance organization is defined as “four or more persons sharing a common purpose to engage in conduct that constitutes or advances the commission of a felony under [Penal Law article 220]” (Penal Law § 220.00[18] ), and a director is “the principal administrator, organizer[ ] or leader” of such an organization, or one of several such persons (Penal Law § 220.00[19] ).
The People sought to prove that defendant acted as the director of a controlled substance organization for the requisite time period by presenting the testimony of a number of witnesses who had allegedly purchased heroin from defendant and/or worked for him by selling, distributing and delivering heroin, in addition to other testimony.2 The broad outline of the operation revealed by the testimony was that defendant—located in New York City and using the nickname “Flip” instead of his real name—used throw-away cell phones with numbers that frequently changed to maintain contact with numerous individuals in the City of Oneonta, Otsego County, who followed his directions to sell heroin that he supplied to purchasers in that city, and who were paid for their efforts with heroin to support their drug habits. Oneonta narcotics detectives Branden Collison and Christopher Witzenburg testified to describe their lengthy investigation into defendant's Oneonta heroin operation, their encounters with the various witnesses and defendant's ultimate arrest. A confidential informant (hereinafter CI) testified that he cooperated with Collison by performing several controlled buys involving heroin supplied by defendant, including one in June 2010.
A female witness testified that before 2009, she had obtained heroin for her personal use by calling defendant—whom she knew as Flip—on a cell phone; he would then direct her to varying locations in Oneonta where she would be met by persons working for defendant who provided her with heroin and accepted her payments. In 2009, she began working for defendant in exchange for payments of heroin, and continued to do so “for a year and a half ... almost two years” until she was arrested in February 2010. In this capacity, she received phone calls from defendant in which he told her where to meet buyers whom she would supply with heroin that she had obtained from defendant, either by traveling to New York City to pick it up or by receiving it from individuals who transported it from New York City at defendant's direction. This witness testified that she made at least 40 or 50 trips to New York City, generally met defendant at hotels in the Bronx, took between $2,000 and $5,000 in heroin payments to him on each trip and returned with 20 or 30 “bundles” of heroin for sale in Oneonta.3 She also sometimes wired money to defendant via Western Union, using names and New York City addresses that he furnished. She testified that, during this period, she sold an average of 80 to 100 bags of heroin daily at $20 per bag; based on this testimony, the jury could have found that she sold over $150,000 worth of heroin at defendant's behest between November 2009 and February 2010.
A second female witness testified that she worked for defendant, whom she knew as Flip, during an 18–month period ending with her arrest in June 2010, by making approximately 30 to 40 trips to New York City to obtain heroin, meeting defendant or persons working for him at hotels in the Bronx, and transporting 10 to 20 bundles of heroin back to Oneonta after each trip. She stated that she did not handle money during these trips, which was carried by others with whom she traveled, including the first female witness. However, she said that she wired money on several occasions to defendant using Bronx addresses that he provided. This witness testified that she also acted as an intermediary for heroin buyers in Oneonta by calling defendant on their behalf and then following his instructions as to where to meet his agents to complete the sale. She testified that “maybe 15 different people” delivered drugs to her from defendant during these transactions, and that she was paid for her activities in heroin.
A male witness testified that he first made telephone contact with defendant—whom he knew as Flip and never met in person—in early 2010 when he called what he believed to be the cell phone number of the first female witness, seeking to buy heroin, and defendant answered the phone. Thereafter, he spoke by telephone “almost every day” for “at least a month” with defendant, who would direct him to an Oneonta location where he would meet someone who would sell him heroin. After the male witness offered to work for defendant in exchange for drugs, defendant had him pick people up at bus stations and transport them to Oneonta to sell heroin. At defendant's direction, the male witness also rented an Oneonta apartment used as a stash house, where he and other people stored heroin supplied by defendant and then sold it as defendant directed. The witness testified that the stash house arrangement lasted for several weeks until he was arrested in February 2010. During this period, the witness made approximately a dozen $8,000 to $10,000 wire transfers to New York City addresses supplied by defendant.
Contrary to defendant's claim, there was adequate corroboration for the testimony of these accomplice witnesses. A defendant may not be convicted solely on the basis of accomplice testimony that lacks the support of “corroborative evidence tending to connect the defendant with the commission of [the charged] offense” (CPL 60.22[1] ). Nevertheless, the People are not required to furnish independent evidence that establishes every element of the offense in question, or even a single element; instead, corroborative evidence need only “tend[ ] to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth” (People v. Reome, 15 N.Y.3d 188, 191–192, 906 N.Y.S.2d 788, 933 N.E.2d 186 [2010] [internal quotation marks and citation omitted]; see People v. Lloyd, 118 A.D.3d 1117, 1121, 987 N.Y.S.2d 672 [2014] ; People v. Forbes, 111 A.D.3d 1154, 1156–1157, 975 N.Y.S.2d 490 [2013] ). Here, the testimony of both female witnesses was corroborated by that of the narcotics detectives, who testified that they used CIs to make controlled heroin purchases from each of the women, and that these purchases were initiated by contact with defendant or his employees and conducted according to the procedures described by the witnesses. The testimony of the first male witness was corroborated by the same two detectives. Witzenburg testified...
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