This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 18
The People &c.,
            Respondent,
        v.
Norman Whitehead, Jr., &c.,
            Appellant.




          Matthew C. Hug, for appellant.
          Lisa E. Fleischmann, for respondent.




MEMORANDUM:
          The order of the Appellate Division, insofar as
appealed from, should be affirmed.
          We reject defendant's claim that the evidence was not
legally sufficient to support his convictions.   Although the
People did not recover or introduce any of the cocaine that


                              - 1 -
                               - 2 -                         No. 18

defendant was charged with possessing, "direct evidence in the
form of contraband or other physical evidence is not the only
adequate proof" (People v Samuels, 99 NY2d 20, 24 [2002]).   The
People presented sufficient evidence in the form of, among other
things, defendant's intercepted phone calls replete with drug-
related conversations, visual surveillance, and the testimony of
cooperating witnesses.   Defendant's remaining legal sufficiency
claims, including his challenge to the People's proof concerning
the weight of the drugs, are unpreserved.
          We also reject defendant's challenge to the People's
limited remarks during their opening statement regarding the
Penal Law definition of "[s]ell" (Penal Law § 220.00 [1]).   The
People did not misstate the law and, as the trial court reasoned,
the unique facts of this case -- involving "an agreement" to sell
rather than "an actual transaction" -- did not conform to the
conventional meaning of a "sale."   Moreover, both the People and
the trial judge explained that the court -- not the attorneys --
would instruct the jury on the law.    The court therefore did not
abuse its discretion by permitting the comments.
          Defendant's challenge to the People's summation is
unpreserved, and his claims concerning the grand jury and jury
charge are without merit.   As to defendant's remaining claims, we
agree with the Appellate Division that, to the extent they are
preserved, defendant's claims are without merit.




                               - 2 -
                                 - 3 -                           No. 18

*   *   *   *   *   *    *   *    *      *   *   *   *   *   *   *   *
Order, insofar as appealed from, affirmed, in a memorandum.
Chief Judge DiFiore and Judges Rivera, Abdus-Salaam, Stein,
Fahey, Garcia and Wilson concur.

Decided March 28, 2017




                                 - 3 -
