People v. Hill , 605 N.Y.S.2d 734 ( 1993 )


Menu:
  • Judgment, Supreme Court, New York County (Richard Andrias, J.), rendered May 23, 1990, convicting the defendant, upon a jury verdict, of 2 counts of criminal sale of a controlled substance in the second degree and 2 counts of criminal sale of a controlled substance in the third degree and sentencing him, as a predicate felony offender, to concurrent indeterminate terms of imprisonment of from 7 years to life on the second degree counts and from 4 Vi to 9 years on the third degree counts, affirmed.

    On May 6, 1988, the Drug Enforcement Task Force initiated an investigation into an organization in Brooklyn that was purportedly selling a brand name of heroin called "Raw”. As a result of that investigation, the defendant was convicted, after trial, of selling narcotics to an undercover police officer. The detective, Kevin Joseph, testified that on May 17, 1988, he and a confidential informant went to 31 Patchen Avenue in Brooklyn, where they met with the defendant for the purpose of arranging a purchase of 5 packages of heroin. After telephoning his connection, the defendant told Joseph that the heroin would be arriving shortly. A man named Bogie thereafter arrived on a motorcycle with the packages and he and Joseph agreed to a purchase price of $4000. After the defendant complained, however, that he was being cut out of the deal, Bogie raised the price to $4700. Joseph gave Bogie the $4700 from which $700 was given to the defendant.

    Joseph and the confidential informant returned to 31 *112Patchen Avenue on June 30, 1988. After the informant contacted the defendant by beeper, he and Joseph agreed to another sale. The defendant then contacted his connection, who thereafter arrived with a brown paper bag filled with 500 glassine envelopes, which he gave to the defendant. Joseph handed over $4700 to the defendant in exchange for the bags. Although Joseph attempted to deal directly with the man who brought the narcotics, the man refused to give him his beeper number. Instead, he told Joseph that any dealings would have to go through the defendant.

    Joseph and the confidential informant went to the Brooklyn location again on September 26, 1988 to meet with Andre Colon. A deal had been arranged previously by the confidential informant for Joseph to purchase $4600 worth of narcotics from Colon, a purported member of the targeted organization. While waiting for Colon to arrive, Joseph saw the defendant across the street. The defendant came over and got into Joseph’s car. He then gave Joseph a glassine envelope with a different marking than Joseph had seen previously. The defendant told him that he was selling this brand on his own, apart from the organization.

    After Colon arrived, he, Joseph, the confidential informant and the defendant drove in Joseph’s car to a pay phone where Colon beeped his connection. They then returned to 31 Patchen Avenue where Colon and the defendant got into the confidential informant’s car. Joseph and the confidential informant, in Joseph’s car, then followed Colon and the defendant to Crescent and Fulton Streets, and then to 2958 Atlantic Avenue, which was a radio car repair shop. Once at this location, the defendant directed Joseph inside. Colon then entered the shop while the defendant remained outside. Colon told Joseph to get the money ready so Joseph went to his car and retrieved the $4600 from his trunk. Joseph had asked for a reduction in the $4700 he had paid previously. When he returned to the shop, Colon dropped the five paper bags which later were determined to contain 485 glassine envelopes of heroin, to the floor. Joseph knelt down to pick them up and, while still on the ground, handed up the money. The defendant, who had entered the shop, grabbed the money from Joseph, counted it and handed it over to Colon.

    The defendant contends that the People failed to prove his guilt of criminal sale of a controlled substance in the second degree, with respect to this last transaction, beyond a reasonable doubt. The dissent agrees that the record fails to establish any culpable participation by the defendant in this sale, *113and that his conviction on this count should therefore be reversed, and that portion of the indictment dismissed.

    Viewing the evidence in a light most favorable to the People, and giving due deference to the jury’s findings of credibility (see, People v Contes, 60 NY2d 620; People v Rosa, 176 AD2d 188, 189, lv denied 79 NY2d 923), we find that the defendant’s guilt on a theory of accomplice liability was proven beyond a reasonable doubt. The record establishes that the defendant acted with the mental culpability necessary to commit the crime charged and that, in furtherance thereof, he solicited, requested, commanded, importuned or intentionally aided the seller to commit such crime (Penal Law § 20.00).

    While mere presence at the scene of a crime with knowledge of its perpetration does not render the observer accessorily liable (see, People v Reyes, 82 AD2d 925; and see, People v La Belle, 18 NY2d 405; People v Karchefski, 102 AD2d 856), the defendant’s actions, under the totality of the circumstances, were clearly designed to effectuate the commission of the crime (see, People v Reddy, 108 AD2d 945, 948). His course of conduct conflicts with the dissent’s portrayal of him as a possible bystander.

    The defendant, the seller of heroin to Joseph on previous occasions, accompanied his fellow member Colon to complete the sale to Joseph on September 26th. He drove with Colon to a pay phone to contact the supplier and then to the repair shop where the sale to Joseph was to take place. He directed Joseph inside and then remained outside, actions consistent with those of a lookout. He then entered the premises, grabbed the money from Joseph and counted it before handing it over to Colon. The purchase price, after a renegotiation by Joseph, was $4600, $600 more than the price originally set by Bogie, which was thereafter raised to include a cut for the defendant. Instead of receiving 500 glassines, Joseph received 485 for the discount in price. That the defendant did not negotiate or arrange this transaction, or physically hand the drugs over to Joseph did not affect his liability as an accomplice (see, People v Kaplan, 76 NY2d 140; People v Wylie, 180 AD2d 774, lv denied 81 NY2d 767; People v Jones, 104 AD2d 330). The People did not have to prove that the defendant acted with the specific intent to sell the drugs; the culpable mental state for criminal sale of a controlled substance is " 'knowledge’ ” (People v Kaplan, supra, at 142). In sum, the jury reasonably inferred the defendant’s knowledge of and participation in the drug transaction (see, People v Dordal, 55 NY2d 954, rearg dismissed 61 NY2d 759).

    *114Equally devoid of merit is the contention of the defendant and the dissent that the defendant’s conviction on those counts charging him with criminal sale of a controlled substance in the second degree (Penal Law § 220.41 [1]) must be reduced to criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) because the People failed to prove, beyond a reasonable doubt, by legally sufficient evidence, that he sold at least one-half ounce of contraband. The accuracy of the procedure employed by the People’s expert witness, a chemist with the Drug Enforcement Administration, to weigh the narcotics sold in the transactions, was challenged by the defense expert, a statistician.

    The credentials of both witnesses, and the bases for their opinions, were presented to the jury, whose function was to resolve issues of credibility and the weight to be accorded to the evidence (see, People v Garafolo, 44 AD2d 86, 88; and see, Two Guys v S.F.R. Realty Assocs., 186 AD2d 186, 188). The jury was free to accept or reject all or any portion of the testimony of these experts (see, People v Reed, 40 NY2d 204, 208). This they in fact did, as evidenced by the acquittal of the defendant on a count charging him with criminal sale of a controlled substance in the second degree, with regard to which the People’s expert testified that the heroin weighed 17.7 grams and the defense expert maintained that there was a 27% probability that the heroin actually weighed less than the statutorily required weight of one-half ounce (14.2 grams). As to the counts upon which the defendant was convicted, however, the defense expert found a significantly higher probability that the narcotics sold exceeded the statutory weight. Great deference must be accorded the jury’s opportunity to view the witnesses, hear their testimony and to observe their demeanor (People v Bleakley, 69 NY2d 490, 495).

    While the defendant and the dissent assail the prosecution expert’s admitted lack of statistical expertise, the defense expert conceded that statistics is an inexact science in which it is impossible to achieve complete accuracy. Moreover, he testified that he was unable to employ an ideal method to reach his calculations since he was not provided with the individual glassine envelopes to weigh.

    The standard of proof beyond a reasonable doubt does not require proof beyond all possibility of doubt and the jury was so charged (1 CJI[NY] 6.20). The testimony of the prosecution expert was not "so baseless or riddled with contradiction that it was unworthy of belief as a matter of law” and, despite the challenge by the defense expert, the jury was entitled to *115accept this evidence (Matter of Anthony M., 63 NY2d 270, 281). Concur—Rosenberger, Kassal and Rubin, JJ.

Document Info

Citation Numbers: 199 A.D.2d 111, 605 N.Y.S.2d 734

Judges: Murphy

Filed Date: 12/16/1993

Precedential Status: Precedential

Modified Date: 1/13/2022