State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 9, 2015 105463 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

NORMAN WHITEHEAD JR., Also

Known as NORM,

Appellant.

________________________________

Calendar Date: May 26, 2015

Before: Lahtinen, J.P., McCarthy, Rose and Clark, JJ.

__________

Matthew C. Hug, Troy, for appellant.

Eric T. Schneiderman, Attorney General, New York City (Lisa

Fleischmann of counsel), for respondent.

__________

Lahtinen, J.P.

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
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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 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 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

NY3d 267, 269 [2011]; see People v Dalton, 27 AD3d 779, 781

[2006], lvs denied 7 NY3d 754, 811 [2006]). With respect to the

conspiracy charge, the issue was not preserved (see People v

Allen, 24 NY3d 441, 449-450 [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 AD2d 714, 715-716 [2002], lv denied 99

NY2d 582 [2003]). 

1 Defendant received a prison term of 5 to 15 years on

count 1 to run concurrently with all sentences. Counts 225 and

226 were concurrent to each other with a longest term of eight

years in prison. Consecutive thereto, but concurrent with each

other, were counts 227, 228 and 229, with a longest term of 12

years in prison. Consecutive thereto and consecutive to each

other were the remaining counts – 232, 244 and 245 – with each

being three years in prison.
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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 NY2d 244, 248 [1997] [internal quotation

marks, brackets, emphasis and citations omitted]; see People v

Bleakley, 69 NY2d 490, 495 [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 conflicting

proof, while giving due deference to the jury's credibility

determinations (see People v Bleakley, 69 NY2d at 495; People v

Robinson, 123 AD3d 1224, 1226-1227 [2014], lvs denied 25 NY3d

992, 993 [2015]; People v Crampton, 45 AD3d 1180, 1182 [2007], lv

denied 10 NY3d 861 [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 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
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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 AD3d 1178, 1179-1180 [2011], lv denied 17 NY3d 819

[2011]; see also People v Jackson, 121 AD3d 1185, 1189 [2014])

and, accordingly, reverse as to such counts.

The remaining convictions are supported by legally

sufficient evidence and are not against the weight of the

evidence. As to such convictions, evidence in the record

includes, among other things, the recordings of extensive cell

phone conversations in which defendant set up meetings for and

consummated narcotics transactions in different locations at

various times. Defendant typically used language coded to

disguise the nature of the transactions; however, the People

presented explanatory testimony by an investigator who had

expertise regarding dialogue disguised for drug dealings (see

People v Inoa, ___ NY3d ___, ___, 2015 NY Slip Op 04790, *5

[2015]; People v Blackman, 118 AD3d 1148, 1150 [2014], lv denied

24 NY3d 1001 [2014]; People v Heard, 92 AD3d 1142, 1144 [2012],

lv denied 18 NY3d 994 [2012]). Defendant stresses that the

People failed to recover or produce at trial any cocaine actually

possessed by him. Significantly, however, two individuals who

had been indicted with defendant eventually cooperated with the

People and testified against defendant. These individuals

clearly had knowledge of cocaine, they were involved in cocaine

transactions with defendant and they indicated that defendant

supplied a drug that they used and/or resold and that they knew

to be cocaine (see People v Christopher, 161 AD2d 896, 897

[1990], lv denied 76 NY2d 786 [1990] ["In situations where the

illegal substance is not available for analysis, drug users who

can demonstrate a knowledge of the narcotic are competent to

testify."]). Viewed most favorably to the People, legally

sufficient evidence was provided by the combination of, among

other proof, the extensive phone records, the explanation of the

drug-related street language used therein, coinciding

transactions (some observed by police), and testimony of

cooperating witnesses who had been participants in various
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transactions. In addition, after independently weighing the

evidence, the convictions on the remaining counts are supported

by the weight thereof. 

The further arguments advanced by defendant do not require

extended discussion. Defendant's primary theory on appeal for

seeking suppression of evidence obtained from the eavesdropping

warrant was not preserved (see People v DePonceau, 96 AD3d 1345,

1346 [2012], lv denied 19 NY3d 1025 [2012]) and, in any event,

Supreme Court did not err in denying such motion. Nor was it

error to deny defendant's motion to dismiss the indictment for

alleged grand jury improprieties since, viewed in context of the

extensive nature of the proof and noting the lack of prejudice to

defendant, the prosecutor's conduct did not give rise to the

"drastic, exceptional remedy" of dismissal pursuant to CPL 210.35

(5) (People v Sutherland, 104 AD3d 1064, 1066 [2013] [internal

quotation marks and citation omitted]). The prosecutor's

comments during opening and summation about the law do not

require reversal. The comments did not inaccurately state the

law and, further, the court made clear to the jury that it must

accept the law as stated by the court (see People v Bush, 75 AD3d

917, 920 [2010], lv denied 15 NY3d 919 [2010]). Given

defendant's significant role in widespread drug trafficking and

the fact that he was sentenced to less than the maximum for his

multiple crimes committed at different times, we do not find that

the sentence was unduly harsh or an abuse of discretion (see

People v Acevedo, 118 AD3d 1103, 1108 [2014]; People v Souffrant,

93 AD3d 885, 887-888 [2012], lv denied 19 NY3d 968 [2012]; People

v Vargas, 72 AD3d 1114, 1120-1121 [2010], lv denied 15 NY3d 758

[2010]; People v Jackson, 251 AD2d 820, 824 [1998], lv denied 92

NY2d 926 [1998]). We have considered defendant's other arguments

and find them unavailing.

McCarthy, Rose and Clark, JJ., concur.
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ORDERED that the judgment is modified, on the facts, by

reversing defendant's convictions of criminal sale of a

controlled substance in the third degree under counts 244 and 245

of the indictment; said counts dismissed and the sentences

imposed thereon vacated; and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court