People v. Turner

• Decision Date: 17 October 2019
• Docket Number: 107949
• Citation: 178 A.D.3d 70,111 N.Y.S.3d 718
• Parties: The PEOPLE of the State of New York, Respondent, v. Jeffrey TURNER, also known as HA, Appellant.
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 70
111 N.Y.S.3d 718

The PEOPLE of the State of New York, Respondent,
v.
Jeffrey TURNER, also known as HA, Appellant.

107949

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

Calendar Date: September 12, 2019
Decided and Entered: October 17, 2019

111 N.Y.S.3d 720

George J. Hoffman Jr., East Greenbush, for appellant, and appellant pro se.

Letitia James, Attorney General, New York City (Lisa E. Fleischmann of counsel), for respondent.

Before: Garry, P.J., Clark, Mulvey and Pritzker, JJ.

OPINION AND ORDER

Mulvey, J.

178 A.D.3d 72

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered July 23, 2015, upon a verdict convicting defendant of the crimes of conspiracy in the fourth degree and criminal possession of a controlled substance in the third degree.

After an extensive investigation into cocaine sales, defendant and 24 others were charged in a 349–count indictment related to possession and sales of narcotics. Defendant was charged with conspiracy in the second degree and two counts of criminal possession of a controlled substance in the third degree. Following trial, a jury acquitted defendant of conspiracy in the second degree and one count of criminal possession of a controlled substance in the third degree (based on intent to sell), but convicted him of the lesser included offense of conspiracy in the fourth degree and the other count of criminal possession

111 N.Y.S.3d 721

of a controlled substance in the third degree (based on weight of the substance). County Court sentenced defendant, as a second felony drug offender, to a prison term of 2 to 4 years for conspiracy in the fourth degree and to a concurrent prison term of 11 years with three years of postrelease supervision for criminal possession of a controlled substance in the third degree. Defendant appeals.

The evidence was legally sufficient and the verdict is not against the weight of the evidence. Initially, defendant failed to preserve his legal sufficiency argument as to the count of criminal possession of a controlled substance in the third degree of which he was convicted, as he did not specifically challenge that count in his motion for a trial order of dismissal (see People v. Chaneyfield, 157 A.D.3d 996, 996, 69 N.Y.S.3d 144 [2018], lv denied 31 N.Y.3d 1012, 78 N.Y.S.3d 282, 102 N.E.3d 1063 [2018] ; People v. Wright, 139 A.D.3d 1094, 1095–1096, 31 N.Y.S.3d 633 [2016], lvs denied 28 N.Y.3d 939, 40 N.Y.S.3d 367, 63 N.E.3d 87 [2016], 29 N.Y.3d 1089, 64 N.Y.S.3d 178, 86 N.E.3d 265 [2017] ). Nevertheless, in reviewing defendant's challenge that the verdict is against the weight of the evidence, we must determine whether each element of the charged crimes was proven beyond a reasonable doubt (see id. ). To determine legal sufficiency, this Court must "evaluate whether the evidence – viewed in the

178 A.D.3d 73

light most favorable to the People – provides any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime[s] charged" ( People v. Greenfield, 167 A.D.3d 1060, 1061, 89 N.Y.S.3d 461 [2018] [internal quotation marks and citations omitted], lv denied 32 N.Y.3d 1204, 99 N.Y.S.3d 245, 122 N.E.3d 1157 [2019] ; see People v. Lamont, 25 N.Y.3d 315, 318, 12 N.Y.S.3d 6, 33 N.E.3d 1275 [2015] ). As to weight of the evidence, if a different result would not have been unreasonable, this Court must "weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported" ( People v. Wilson, 164 A.D.3d 1012, 1014, 83 N.Y.S.3d 705 [2018] ).

A person is guilty of conspiracy in the fourth degree when, with the intent that conduct constituting "a class B or class C felony be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct" ( Penal Law § 105.10[1] ; see People v. Gagnier , 146 A.D.3d 1019, 1021, 46 N.Y.S.3d 672 [2017], lv denied 29 N.Y.3d 1079, 64 N.Y.S.3d 169, 86 N.E.3d 256 [2017] ; People v. Vargas , 72 A.D.3d 1114, 1118, 898 N.Y.S.2d 323 [2010], lv denied 15 N.Y.3d 758, 906 N.Y.S.2d 831, 933 N.E.2d 230 [2010] ). "A person may be convicted of conspiracy so long as an overt act is alleged and shown to have been committed by one of the conspirators in furtherance of a conspiracy" ( People v. Gagnier, 146 A.D.3d at 1021, 46 N.Y.S.3d 672 ; see Penal Law § 105.20 ). As relevant here, "[a] person is guilty of criminal possession of a controlled substance in the third degree when he [or she] knowingly and unlawfully possesses ... one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of one-half ounce or more" ( Penal Law § 220.16[12] ).

Codefendant Cory Pinkney testified that on numerous occasions, including certain specific dates, he sold powder cocaine to codefendant Rayshawn Tibbs, and that defendant sometimes accompanied Tibbs for these sales. Tibbs confirmed his

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purchases from Pinkney and testified that he and defendant sometimes split the cocaine purchased from Pinkney. Additionally, even when defendant was not involved in those purchases,

178 A.D.3d 74

Tibbs would arrange with defendant to use defendant's apartment to cook the powder cocaine into crack cocaine. Evidence relating to text messages and phone calls, recorded pursuant to eavesdropping warrants and explained by an investigator with experience in narcotics transactions, supported the testimony that drug sales occurred involving members of the conspiracy on specified dates.

This evidence, along with other supporting testimony, documents and recordings, was sufficient to establish that defendant agreed with at least one other person to perform conduct constituting the class B felonies of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree (see Penal Law §§ 220.16, 220.39 ), and that more than one of the conspirators committed an overt act in furtherance of the conspiracy. Pinkney's testimony corroborated Tibbs' testimony and tended to connect defendant to the conspiracy, and both of their accomplice testimonies were corroborated by the recordings and text messages intercepted through the eavesdropping warrants, as that information was explained by the police witnesses (see CPL 60.22 ; People v. Caban, 5 N.Y.3d 143, 155, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; People v. Miles , 119 A.D.3d 1077, 1079, 990 N.Y.S.2d 141 [2014], lvs denied 24 N.Y.3d 1003, 997 N.Y.S.2d 121, 122, 21 N.E.3d 573, 574 [2014]).

Moreover, testimony of police witnesses established that when defendant was strip-searched on December 27, 2013, a bag containing approximately 100 grams of cocaine fell out of the leg of his sweatpants. This testimony, along with scientific proof that the substance in the bag contained cocaine, constituted proof of each...