People v. Williams

• Citation: 150 A.D.3d 1315,53 N.Y.S.3d 716
• Parties: The PEOPLE of the State of New YORK, Respondent, v. Michael WILLIAMS, Appellant.
• Decision Date: 04 May 2017
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 1315
53 N.Y.S.3d 716

The PEOPLE of the State of New YORK, Respondent,
v.
Michael WILLIAMS, Appellant.

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

May 4, 2017.

53 N.Y.S.3d 717

Mark Diamond, Albany, for appellant.

53 N.Y.S.3d 718

Eric T. Schneiderman, Attorney General, New York City (Matthew B. Keller of counsel), for respondent.

Before: McCARTHY, J.P., GARRY, EGAN JR., ROSE and MULVEY, JJ.

ROSE, J.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered July 10, 2013, upon a verdict convicting defendant of the crimes of conspiracy in the second degree, criminal sale of a controlled substance in the second degree (two counts), criminal sale of a controlled substance in the third degree (seven counts), criminal possession of a controlled substance in the third degree (six counts) and criminal possession of a controlled substance in the fourth degree.

Following an investigation by the Attorney General's Organized Crime Task Force, defendant and 51 others were charged in a 261–count indictment with conspiracy in the second degree and other crimes stemming from the distribution and sale of cocaine and heroin in Albany County, among other locations. The case against defendant was based in large part upon intercepted cellular telephone conversations and text messages exchanged with certain codefendants and other individuals in which coded language was used to disguise the illicit nature of the transactions. Following an extensive 11–week jury trial,¹ defendant was convicted of one count of conspiracy in the second degree (count 1), two counts of criminal sale of a controlled substance in the second degree (counts 199 and 206), seven counts of criminal sale of a controlled substance in the third degree (counts 196, 197, 198, 201, 203, 207 and 208), six counts of criminal possession of a controlled substance in the third degree (counts 176, 191, 192, 249, 251 and 261) and one count of criminal possession of a controlled substance in the fourth degree (count 250). He was sentenced, as a second felony offender, to an aggregate prison term of 108 years, with various terms of postrelease supervision. He now appeals.

Defendant first contends that County Court should have dismissed counts 176, 191 and 192, charging him with criminal possession of a controlled substance in the third degree (see Penal Law § 220.16[1], [12] ), because the factual allegations set forth in the indictment did not support these charges. We disagree. Although the indictment erroneously included the word "attempt" in reference to these counts, the applicable statutory provisions were expressly incorporated by reference, thereby apprising defendant of the elements of each crime and rendering counts 176, 191 and 192 jurisdictionally valid (see People v. Cane, 123 A.D.3d 1301, 1302, 996 N.Y.S.2d 797 [2014], lv. denied 25 N.Y.3d 988, 10 N.Y.S.3d 531, 32 N.E.3d 968 [2015] ; see generally People v. D'Angelo, 98 N.Y.2d 733, 734–735, 750 N.Y.S.2d 811, 780 N.E.2d 496 [2002] ). In addition, County Court properly granted the People's pretrial motion to amend these counts to remove the word "attempt" (see People v. Mitchell, 94 A.D.3d 1252, 1253, 942 N.Y.S.2d 657 [2012], lv. denied 19 N.Y.3d 964, 950 N.Y.S.2d 116, 973 N.E.2d 214 [2012] ). Defendant's related challenge to the factual allegations set forth in counts 1 and 250, charging defendant with conspiracy in the second degree (see Penal Law § 105.15 ) and criminal possession of a controlled substance in the fourth degree (see Penal Law § 220.09[1] ), respectively, is

53 N.Y.S.3d 719

unpreserved for our review (see People v. Orcutt, 49 A.D.3d 1082, 1084, 854 N.Y.S.2d 247 [2008], lv. denied 10 N.Y.3d 938, 862 N.Y.S.2d 344, 892 N.E.2d 410 [2008] ). Were we to review this claim, we would find it to be equally without merit.

Defendant's claim that numerous counts of the indictment are duplicitous is similarly unpreserved for our review. In any event, this contention is also without merit inasmuch as "[e]ach disputed count charged a single offense, and the evidence at trial, as well as the instructions to the jury, made plain that each count involved a single criminal act" (People v. Simmons, 115 A.D.3d 1018, 1019, 981 N.Y.S.2d 475 [2014] ; see CPL § 200.30 [1 ]; People v. Whitehead, 130 A.D.3d 1142, 1143, 13 N.Y.S.3d 642 [2015], affd. 29 N.Y.3d 956, 51 N.Y.S.3d 486, 73 N.E.3d 842 [2017] ; see generally People v. Alonzo, 16 N.Y.3d 267, 269, 920 N.Y.S.2d 302, 945 N.E.2d 495 [2011] ).² Although defendant's related contention that he was convicted upon multiplicitous counts is preserved for our review, we nonetheless find it to be unavailing. In this regard, "[a]n indictment is considered multiplicitous when two or more separate counts charge the same crime" (People v. Blount, 129 A.D.3d 1303, 1304, 12 N.Y.S.3d 331 [2015], lv. denied 27 N.Y.3d 992, 38 N.Y.S.3d 103, 59 N.E.3d 1215 [2016] ; see People v. Alonzo, 16 N.Y.3d at 269, 920 N.Y.S.2d 302, 945 N.E.2d 495 ; People v. Hoffman, 130 A.D.3d 1152, 1153, 13 N.Y.S.3d 619 [2015], lv. denied 26 N.Y.3d 1009, 20 N.Y.S.3d 549, 42 N.E.3d 219 [2015] ). Here, a review of the record demonstrates that each challenged count required proof of an additional fact that the others did not and, thus, defendant was not convicted upon multiplicitous counts (see People v. Nailor, 268 A.D.2d 695, 696, 701 N.Y.S.2d 476 [2000] ; People v. Kindlon, 217 A.D.2d 793, 795, 629 N.Y.S.2d 827 [1995], lv. denied 86 N.Y.2d 844, 634 N.Y.S.2d 453, 658 N.E.2d 231 [1995] ).

Next, defendant contends that his conspiracy conviction (count 1) and 12 of his other convictions (counts 176, 191, 192, 196, 197, 198, 199, 201, 203, 206, 207 and 208) were not supported by legally sufficient evidence and were against the weight of the evidence because the People failed to recover or produce any drugs actually possessed or sold by him and, therefore, they were unable to establish his participation in the conspiracy or his possession and sale of drugs as to these counts. When conducting our legal sufficiency analysis, "we must evaluate whether, after viewing the evidence in the light most favorable to the People, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (People v. Ramos, 19 N.Y.3d 133, 136, 946 N.Y.S.2d 83, 969 N.E.2d 199 [2012] [internal quotation marks, brackets, emphasis and citations omitted]; see People v. Novak, 148 A.D.3d 1352, 1354, 50 N.Y.S.3d 577 [2017] ). In our weight of the evidence review, where, as here, a different verdict would not have been unreasonable, we "must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [internal quotation marks and citation omitted]; see People

53 N.Y.S.3d 720

v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). In our evaluation of the evidence, we are mindful that "the People are not required to recover drugs for testing in order to prove possession or sale of a controlled substance; rather, they may rely on other evidence that establishes the nature of the drugs in question beyond a reasonable doubt" (People v. Wright, 139 A.D.3d 1094, 1098, 31 N.Y.S.3d 633 [2016], lv. denied 28 N.Y.3d 939, 40 N.Y.S.3d 367, 63 N.E.3d 87 [2016] ; see People v. Whitehead, 29 N.Y.3d 956, 957–958, 51 N.Y.S.3d 486, 73 N.E.3d 842 [2017] ).

Dennis Guiry, an investigator with extensive experience with gang and narcotics investigations and the use of dialogue disguised for drug dealings, testified that he was the case officer for this investigation and, in that capacity, he listened to "hundreds" of wire-tapped phone calls. Guiry testified that he has had numerous prior dealings with defendant and that he was familiar with defendant's voice from those dealings, as well as from listening to defendant's voice in approximately 50 to 100 of the intercepted phone calls. In connection with Guiry's testimony, the relevant phone calls were played to the jury and the jury was provided with transcripts of the conversations and text messages to aid them when they were listening to the calls. After a call was played, in most instances, Guiry provided his opinion as to the terms used and the true nature of the conversations. For example, Guiry testified that, in a series of calls on January 10, 2012, defendant can be heard discussing the difficulties that he was having cooking powder cocaine into crack cocaine and, at one point, defendant stated that he "went and grabbed a dollar more." Although that statement was seemingly innocuous, Guiry testified that defendant was actually referencing his purchase of 100 grams of cocaine. In addition to the proof regarding the specific occasions on which defendant possessed or offered to sell drugs, the People also introduced intercepted phone calls between defendant and certain coconspirators, including codefendant Guy Anderson, in which they discussed, among other things, cooking cocaine and gathering money to enable Anderson to purchase drugs from a dealer in New York City. Moreover, a witness testified that, during the alleged conspiracy...