Opinion
15478, 175/11
06-18-2015
The PEOPLE of the State of New York, Respondent, v. Nathaniel ROBINSON, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Lisa A. Packard of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Alice Wiseman of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Lisa A. Packard of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alice Wiseman of counsel), for respondent.
GONZALEZ, P.J., TOM, FRIEDMAN, KAPNICK, JJ.
Opinion
Judgment, Supreme Court, New York County (Michael J. Obus, J. at suppression hearing; Juan M. Merchan, J. at jury trial and sentencing), rendered May 23, 2012, convicting defendant of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to concurrent terms of six years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not 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] ). There is no basis for disturbing the jury's credibility determinations. The totality of the sequence of events supports the conclusion that defendant took part in the transaction as part of a team of drug dealers, and that he was a joint possessor of the additional drugs found at the scene (see People v. Eduardo, 11 N.Y.3d 484, 493, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008], People v. Branch, 63 A.D.3d 631, 882 N.Y.S.2d 411 [1st Dept.2009], lv. denied 13 N.Y.3d 794, 887 N.Y.S.2d 544, 916 N.E.2d 439 [2009] ). The jury could have reasonably inferred that the unidentified object defendant passed to a codefendant contained drugs (see People v. Bolden, 6 A.D.3d 315, 775 N.Y.S.2d 135 [1st Dept.2004], lv. denied 3 N.Y.3d 637, 782 N.Y.S.2d 408, 816 N.E.2d 198 [2004] ), and that either defendant or a codefendant prevented the recovery of the prerecorded buy money by taking some action that escaped the notice of the police (see People v. Hooper, 48 A.D.3d 292, 852 N.Y.S.2d 78 [1st Dept.2008], lv. denied 10 N.Y.3d 864, 860 N.Y.S.2d 491, 860 N.Y.S.2d 491, 890 N.E.2d 254 [2008] ).
The court properly admitted expert testimony on street-level drug sales. Defendant's only objection to this testimony was a claim that it should have been elicited from one of the fact witnesses. While a fact witness may serve a dual role, “it may be preferable for testimony of this nature to come from a source other than a fact witness” (People v. Jamison, 103 A.D.3d 537, 538, 959 N.Y.S.2d 490 [1st Dept.2013], lv. denied 21 N.Y.3d 1016, 971 N.Y.S.2d 498, 994 N.E.2d 394 [2013] ). Defendant's remaining challenges to the expert testimony are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we reject them on the merits (see People v. Brown, 97 N.Y.2d 500, 506–507, 743 N.Y.S.2d 374, 769 N.E.2d 1266 [2002] ). In particular, there was a factual foundation for this testimony because the evidence clearly showed that there were multiple participants in the sale (see People v. Bolden, 6 A.D.3d at 315, 775 N.Y.S.2d 135 ), and the evidence relating to intent to sell was within the scope of expert testimony permitted under People v. Hicks, 2 N.Y.3d 750, 778 N.Y.S.2d 745, 811 N.E.2d 7 (2004).
The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations. Probable cause for defendant's arrest was established by the arresting officer's testimony that he received a “positive buy” transmission with descriptions of the participants, notwithstanding that the transmission did not spell out defendant's role in the transaction (see e.g. People v. Harris, 305 A.D.2d 282, 758 N.Y.S.2d 807 [1st Dept.2003], lv. denied 100 N.Y.2d 582, 764 N.Y.S.2d 392, 796 N.E.2d 484 [2003] ), and that defendant matched one of the descriptions. The hearing evidence also supported the conclusion that all the officers in the team heard the same transmissions, regardless of which officer initially stopped defendant (see People v. Gonzalez, 91 N.Y.2d 909, 910, 669 N.Y.S.2d 526, 692 N.E.2d 557 [1998] ; People v. Mims, 88 N.Y.2d 99, 113–114, 643 N.Y.S.2d 502, 666 N.E.2d 207 [1996] ).
We have considered and rejected defendant's argument that trial counsel rendered ineffective assistance by failing to request a circumstantial evidence charge (see People v. Torres, 108 A.D.3d 474, 475, 969 N.Y.S.2d 462 [2013], lv. denied 22 N.Y.3d 998, 981 N.Y.S.2d 4, 3 N.E.3d 1172 [2013] ).
We perceive no basis for reducing the sentence.