People v. Wright

• Decision Date: 05 May 2016
• Docket Number: 104523.
• Citation: 2016 N.Y. Slip Op. 03550,139 A.D.3d 1094,31 N.Y.S.3d 633
• Parties: The PEOPLE of the State of New York, Respondent, v. Ronald WRIGHT, also known as Nino, Appellant.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 1094

31 N.Y.S.3d 633

2016 N.Y. Slip Op. 03550

The PEOPLE of the State of New York, Respondent,

v.Ronald WRIGHT, also known as Nino, Appellant.

104523.

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

May 5, 2016.

George J. Hoffman Jr., Albany, for appellant, and appellant pro se.

Eric T. Schneiderman, Attorney General, New York City (Hannah Stith Long of counsel), for respondent.

Before: GARRY, J.P., EGAN JR., LYNCH, DEVINE and CLARK, JJ.

GARRY, J.P.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered July 5, 2011, upon a verdict convicting defendant of the crimes of enterprise corruption, attempted criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, criminal sale of a controlled substance in the second degree, conspiracy in the second degree and criminal sale of controlled substance in the third degree (17 counts).

Defendant was one of approximately 40 individuals who were indicted for drug crimes in September 2010 after an investigation into narcotics trafficking in and around the City of Albany by the Attorney General's Organized Crime Task Force. The People alleged that defendant, who was based in Long Island, was a heroin supplier for an Albany-based group of members of the Bloods gang, including codefendant Erick Cochran, who shared the common purpose of selling marihuana and narcotics. The case against defendant was based in large part upon intercepted cellular telephone conversations and text messages exchanged among defendant, Cochran and other individuals. Dennis Guiry, an investigator who participated in the surveillance, testified at trial regarding his interpretation of the intercepted communications, which allegedly revealed that the group was a criminal enterprise, that defendant and Cochran trafficked in narcotics as members of this group and, specifically, that defendant supplied Cochran with bulk heroin on two occasions in July 2010, which Cochran then sold to individuals in the Albany area.

Following a joint jury trial with Cochran, defendant was convicted of enterprise corruption, attempted criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, criminal sale of a controlled substance in the second degree, conspiracy in the second degree and 17 counts of criminal sale of a controlled substance in the third degree. He was thereafter sentenced to an aggregate prison term of 141 ½ years. Defendant appeals.

Defendant contends that the People failed to establish that he sold more than one-half ounce of heroin on the date charged in the indictment (see Penal Law § 220.41[1] ) and, thus, his conviction for criminal sale of a controlled substance in the second degree is not supported by legally sufficient evidence and is also against the weight of the evidence. Although the legal sufficiency contention was not properly preserved (see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ; People v. Cruz, 131 A.D.3d 724, 724, 14 N.Y.S.3d 804 [2015], lv. denied 26 N.Y.3d 1087, 23 N.Y.S.3d 644, 44 N.E.3d 942 [2015] ), we necessarily determine whether each element of the crime was proven beyond a reasonable doubt in assessing the claim that the conviction is against the weight of the evidence (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. Scott, 129 A.D.3d 1306, 1307, 12 N.Y.S.3d 335 [2015], lv. denied 26 N.Y.3d 1092, 23 N.Y.S.3d 649, 44 N.E.3d 947 [2015] ). This challenged charge arose from the second of the two July 2010 heroin transactions. Guiry testified that the intercepted communications revealed that Cochran contacted defendant on July 11, 2010 to advise that he had sold all of the heroin from the earlier transaction and wished to make another purchase. Negotiations as to price and quantity ensued, and on July 12, 2010—the date charged in the indictment—Cochran traveled to New York City to meet with defendant. According to Guiry, their intercepted conversations revealed that, on that day, they reached an agreement that Cochran would purchase 16 grams of heroin. No transfer of drugs actually occurred until the next day, when defendant arranged for Cochran to buy heroin from a seller on Long Island. By that time, Cochran had spent some of the money that he had brought with him and could afford to purchase only approximately 13 ½ grams. Following the purchase, Cochran transported the heroin to Albany, where he cut, packaged and resold it.

We agree with defendant that the People failed to prove beyond a reasonable doubt that a statutory sale of more than one-half ounce of heroin occurred. A statutory sale may be proven by evidence of an offer or agreement to sell drugs, but “the weight of the material must be independently shown” ( People v. George, 67 N.Y.2d 817, 819, 501 N.Y.S.2d 639, 492 N.E.2d 767 [1986] ; see Penal Law § 220.00[1] ; People v. Banchs, 268 A.D.2d 262, 262, 701 N.Y.S.2d 373 [2000], lv. denied 95 N.Y.2d 793, 711 N.Y.S.2d 161, 733 N.E.2d 233 [2000] ). Here, no narcotics were recovered by the police, and the proof of the weight of heroin that defendant agreed to procure for Cochran was equivocal; while the amount of 16 grams was discussed, Cochran also stated that he might purchase “something like that” or, because he had limited funds and other expenses, might “get something lower.” As the People correctly argue, the full amount of transferred narcotics need not always be recovered to satisfy the weight requirement when a sale is based upon an offer or an agreement; nevertheless, there must be some form of independent evidence from which the total weight can be extrapolated (see People v. Alvarado, 228 A.D.2d 168, 168, 644 N.Y.S.2d 703 [1996], lv. denied 88 N.Y.2d 980, 649 N.Y.S.2d 386, 672 N.E.2d 612 [1996] ). As there was none here, defendant's conviction for criminal sale of a controlled substance in the second degree is reversed and the corresponding count of the indictment dismissed (see CPL 470.20[2] ; People v. Acevedo, 192 A.D.2d 1094, 1094, 596 N.Y.S.2d 618 [1993], lv. denied 81 N.Y.2d 1010, 600 N.Y.S.2d 198, 616 N.E.2d 855 [1993] ).

As a result of this determination, defendant's conviction for conspiracy in the second degree must also be reversed. “A person shall not be convicted of conspiracy unless an overt act is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy” (Penal Law § 105.20 ; see generally People v. Monday, 309 A.D.2d 977, 978, 765 N.Y.S.2d 705 [2003] ). Here, the People alleged that defendant and Cochran conspired to commit a class A felony consisting of the sale of more than one-half ounce of heroin on July 12, 2010; the overt act alleged in the indictment was the statutory sale itself. Our determination that the People failed to prove beyond a reasonable doubt that the July 12, 2010 agreement involved the requisite amount of heroin requires a finding that the People also failed to prove the alleged overt act in support of the conspiracy charge (see Penal Law § 105.20 ; People v. Menache, 98 A.D.2d 335, 337–338, 470 N.Y.S.2d 171 [1983] ; compare People v. Weaver, 157 A.D.2d 983, 984–985, 550 N.Y.S.2d 467 [1990], lv. denied 76 N.Y.2d 744, 558 N.Y.S.2d 906, 557 N.E.2d 1202 [1990] ). The People's contention that the indictment also alleged that overt acts occurred on two other dates is unavailing, as neither of these transactions was shown to have been undertaken in furtherance of the alleged conspiracy to commit a class A felony.

Next, defendant contends that the People failed to prove that the substance that he and Cochran possessed and sold was heroin and, thus, that his 17 convictions for criminal sale of a controlled substance in the third degree, as well as his convictions for attempted criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, are unsupported by legally sufficient evidence and are against the weight of the evidence.¹ Defendant preserved this contention at trial with the requisite “specifically directed” argument only as to the criminal possession and attempted criminal possession charges (People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] [internal quotation marks omitted] ). Nevertheless, as previously noted, we must determine whether each element of all of the crimes was proven beyond a reasonable doubt as part of our weight of the evidence review (see People v. Danielson, 9 N.Y.3d at 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ).

As for the merits, 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 (see People v. Whitehead, 130 A.D.3d 1142, 1144–1145, 13 N.Y.S.3d 642 [2015], lv. granted 26 N.Y.3d 1043, 22 N.Y.S.3d 173, 43 N.E.3d 383 [2015] ). Here, Guiry testified that Cochran and defendant used slang terms for heroin in the intercepted communications, negotiated prices that corresponded with the going prices for heroin, arranged to obtain a cutting agent used only with heroin, and referenced packaging methods used solely for that drug. Additionally, two customers who bought drugs from Cochran immediately after his transactions with defendant—both of whom were experienced users of heroin and other drugs—testified that the substance they purchased was heroin. Finally, lab analysis of a substance seized from one of the customers immediately after he purchased it confirmed that it was heroin. Accordingly, the People proved beyond a reasonable doubt that the substance possessed and sold by Cochran and defendant was heroin (see People v. Williams, 138 A.D.3d 1233, 1234, 29 N.Y.S.3d 647 [2016] ; People v....