People v. Whitehead

• Decision Date: 09 July 2015
• Docket Number: 105463
• Citation: 13 N.Y.S.3d 642,2015 N.Y. Slip Op. 05972,130 A.D.3d 1142
• Parties: The PEOPLE of the State of New York, Respondent, v. Norman WHITEHEAD Jr., also known as Norm, Appellant.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 1142
13 N.Y.S.3d 642
2015 N.Y. Slip Op. 05972

The PEOPLE of the State of New York, Respondent
v.
Norman WHITEHEAD Jr., also known as Norm, Appellant.

105463

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

July 9, 2015.

13 N.Y.S.3d 643

Matthew C. Hug, Troy, for appellant.

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

Before: LAHTINEN, J.P., MCCARTHY, ROSE and CLARK, JJ.

Opinion

LAHTINEN, J.P.

130 A.D.3d 1142

Appeal from a judgment of the Supreme Court (Breslin, J.), rendered July 30, 2012 in Albany County, upon a verdict convicting defendant of the crimes of conspiracy in the second degree, criminal sale of a controlled substance in the first degree, criminal sale of a controlled substance in the third degree (three counts), criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the second degree and criminal possession of a controlled substance in the third degree (two counts).

Defendant was one of over 30 people named in a 278–count indictment that resulted from a narcotics trafficking investigation by the Attorney General's Organized Crime Task Force. Initially charged in 11 of the counts, he went to trial for nine counts: conspiracy in the second degree (count 1); criminal possession of a controlled substance in the first degree (count 228); criminal possession of a controlled substance in the second

130 A.D.3d 1143

degree (count 225); criminal possession of a controlled substance in the third degree (counts 226 and 229); criminal sale of a controlled substance in the first degree (count 227); and criminal sale of a controlled substance in the third degree (counts 232, 244 and 245). The jury found defendant guilty on all nine counts. He was sentenced to an aggregate term of 29 years in prison¹ together with terms of

13 N.Y.S.3d 644

postrelease supervision. Defendant appeals.

We consider first defendant's argument that the conspiracy charge (count 1) and the sale charges (counts 227, 232, 244 and 245) were duplicitous. “An indictment is duplicitous when a single count charges more than one offense” (People v. Alonzo, 16 N.Y.3d 267, 269, 920 N.Y.S.2d 302, 945 N.E.2d 495 [2011] ; see People v. Dalton, 27 A.D.3d 779, 781, 811 N.Y.S.2d 153 [2006], lvs. denied 7 N.Y.3d 754, 819 N.Y.S.2d 880, 853 N.E.2d 251, 7 N.Y.3d 811, 822 N.Y.S.2d 486, 855 N.E.2d 802 [2006] ). With respect to the conspiracy charge, the issue was not preserved (see People v. Allen, 24 N.Y.3d 441, 449–450, 999 N.Y.S.2d 350, 24 N.E.3d 586 [2014] ). As to the sale counts, the issue was preserved only as to count 232 and, in any event, is unpersuasive as to all the sale counts. Defendant asserts that it was error to inform the jury that he could be convicted of the sale crime if he sold or offered to sell cocaine. However, the definition of a sale, which is set forth in a single statutory subdivision, includes an offer to sell as well as completing the transaction in a sale (see Penal Law § 220.00[1] ), and this does not constitute more than one offense in a single charge (see People v. Giordano, 296 A.D.2d 714, 715–716, 745 N.Y.S.2d 598 [2002], lv. denied 99 N.Y.2d 582, 755 N.Y.S.2d 718, 785 N.E.2d 740 [2003] ).

Next, we turn to defendant's contention that his convictions were not supported by legally sufficient evidence and were against the weight of the evidence. “The standard for reviewing the legal sufficiency of evidence in a criminal case is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (People v. Ficarrota, 91 N.Y.2d 244, 248, 668 N.Y.S.2d 993, 691 N.E.2d 1017 [1997] [internal quotation marks, brackets, emphasis and citations omitted]; see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). In our weight of the evidence review, where, as here, a different verdict would not have been unreasonable, we independently view the evidence in a neutral light and weigh the relative strength of the

130 A.D.3d 1144

conflicting proof, while giving due deference to the jury's credibility determinations (see People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ; People v. Robinson, 123 A.D.3d 1224, 1226–1227, 999 N.Y.S.2d 555 [2014], lvs. denied 25 N.Y.3d 992, 993, 10 N.Y.S.3d 535, 536, 32 N.E.3d 972, 973 [2015] ; People v. Crampton, 45 A.D.3d 1180, 1182, 845 N.Y.S.2d 877 [2007], lv. denied 10 N.Y.3d 861, 860 N.Y.S.2d 487, 890 N.E.2d 250 [2008] ).

We find merit in defendant's contention that his convictions on counts 244 and 245 are not supported by the weight of the evidence. The evidence in support of these two counts was exceedingly sparse, particularly when considered in light of the significant amount of proof otherwise presented at trial. The evidence as to counts 244 and 245 consisted of recordings of two short phone calls—one as to each count—and the investigator's very brief explanation at trial of the calls. The investigator stated that the person talking with defendant in the two calls was as an “[u]nknown

13 N.Y.S.3d 645

person” who went by the nickname “Beans.” In the first call, Beans stated, “I got something for you to [sic]. Four zero.” And, in the second, he stated, “I'm getting out (Inaudible). Three zero.” In each call, the coded language was very cursory, with the purported relevant statement spoken by Beans and not by defendant. The investigator stated that he “believe[d]” that Beans was a crack user, and he interpreted Beans' coded comments as “looking for $40 worth of crack cocaine” in the first call and “$30 worth of crack cocaine” in the second. The purported drug transactions were not witnessed, Beans did not testify (nor was he identified) at trial, no cocaine from the transactions was produced and defendant's responses to Beans in the recorded calls do not clearly indicate an intent to sell cocaine. Although it may be feasible to infer that defendant was invited in these calls to sell $40 and $30 worth of crack cocaine, we are unwilling to infer, based on the minimal proof supporting these charges, that the alleged sales thereafter occurred. We find that the weight of the evidence does not support defendant's guilt as to counts 244 and 245 (see People v. Martin, 81 A.D.3d 1178, 1179–1180, 917 N.Y.S.2d 415 [2011], lv. denied 17 N.Y.3d 819, 929 N.Y.S.2d 807,...