                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: June 18, 2015                      105185
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

SAKAI SCOTT, Also Known as
   KAI, Also Known as BLACK,
                    Appellant.
________________________________


Calendar Date:    April 20, 2015

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

                              __________


     Paul J. Connolly, Delmar, for appellant.

      Eric T. Schneiderman, Attorney General, New York City (Lisa
E. Fleischmann of counsel), for respondent.

                              __________


Rose, J.

      Appeal from a judgment of the Supreme Court (Breslin, J.),
rendered March 30, 2012 in Albany County, upon a verdict
convicting defendant of the crime of criminal sale of a
controlled substance in the third degree (three counts).

      Defendant was charged with enterprise corruption, three
counts of criminal sale of a controlled substance in the third
degree and conspiracy in the second degree as part of a multi-
count indictment against numerous members of the Bloods gang
involved in a narcotics distribution network. After a jury
trial, separate from those of his codefendants, defendant was
convicted only of the three counts charging him with criminal
sale of a controlled substance in the third degree. Supreme
                              -2-                105185

Court sentenced defendant to three consecutive prison terms of
six years each, with two years of postrelease supervision, and he
now appeals.

      Defendant's contention that the verdict is not supported by
legally sufficient evidence is not preserved for our review
inasmuch as he failed to make a motion to dismiss at the close of
the People's case (see People v Buchanan, 95 AD3d 1433, 1433
[2012], lv denied 22 NY3d 1039 [2013]). Nevertheless, we will
evaluate whether the elements of the offense of criminal sale of
a controlled substance in the third degree (see Penal Law
§ 220.39 [1]) were established beyond a reasonable doubt as part
of our weight of the evidence review (see People v Robinson, 123
AD3d 1224, 1225 [2014], lv denied 25 NY3d 992 [2015]; People v
Nichol, 121 AD3d 1174, 1176 [2014]).

      Robert Guiry, a detective with extensive experience with
gang and narcotics investigations, testified that he listened to
over 1,000 recordings of wire-tapped phone calls as part of the
investigation into the narcotic distribution network headed by
codefendant Hector Acevedo. Guiry testified that he was familiar
with defendant's voice from observing and listening to defendant
during his booking and arraignment, as well as listening to his
voice on a number of recorded phone calls to and from Acevedo and
other members of the Bloods gang. The calls were played for the
jury, and the jurors had the opportunity to hear defendant's
voice on recordings that include multiple instances of defendant
being identified by his first name. In a series of calls in
April 2010, defendant was heard agreeing to sell cocaine to
Acevedo and then proceeding to the place of sale on one occasion
and agreeing to sell heroin to Acevedo's customer on another.
The customer testified to the completed sale. Detectives also
testified that they witnessed defendant engage in a hand-to-hand
exchange on the street with a confidential informant (hereinafter
the CI) in June 2010 after the CI called defendant to arrange a
controlled purchase of heroin. Viewing the evidence in a neutral
light, and deferring to the jury's credibility determinations, we
are satisfied that the verdict is supported by the weight of the
evidence (see People v Nichol, 121 AD3d at 1177; People v Wilson,
100 AD3d 1045, 1046 [2012], lv denied 22 NY3d 998 [2013]).
                              -3-                105185

      The balance of defendant's claims of error were not raised
before Supreme Court and are, therefore, unpreserved for our
review (see People v Mercado, 113 AD3d 930, 933 [2014], lv denied
23 NY3d 1040 [2014]; People v Wilson, 100 AD3d at 1048 n; People
v Echavarria, 53 AD3d 859, 863 [2008], lv denied 11 NY3d 832
[2008]). In any event, we will address them because defendant
argues that his counsel's failure to register these objections
deprived him of meaningful representation.

      First, we cannot agree that Guiry's isolated comment on
direct examination that defendant ran a "business selling
narcotics" from his residence should have been objected to and
precluded as prejudicial testimony suggesting a propensity to
sell drugs. As reflected in the People's Venitimiglia
application, the evidence that defendant engaged in drug sales
was not introduced to suggest propensity, but was related to the
conspiracy and enterprise corruption charges and, accordingly, no
pretrial hearing was required (see People v Rodriguez, 121 AD3d
1435, 1440 [2014], lv denied 24 NY3d 1122 [2015]). Likewise,
evidence of defendant's alleged affiliation with the Bloods gang
was relevant to the criminal enterprise charge and admissible to
provide necessary background information regarding the
interaction of defendant and the alleged coconspirators (see
People v Johnson, 106 AD3d 1272, 1274 [2013], lv denied 21 NY3d
1043 [2013]; People v Collazo, 45 AD3d 899, 901 [2007], lv denied
9 NY3d 1032 [2008]).

      Next, although defendant now claims that it was prejudicial
to have his name listed on the transcripts of the phone calls
provided to the jury, he is identified by name multiple times in
calls made to and from the number associated with his cell phone,
and he was seen on video and clearly identified by detectives as
the individual responding to the recorded phone call with the CI.
Moreover, defense counsel introduced the transcripts into
evidence in an apparent, and successful, strategy to defeat the
conspiracy and criminal enterprise charges. Given these
circumstances, as well as Supreme Court's instruction to the
jurors that what they heard on the tapes controlled over what was
written on the transcripts, we find no error (compare People v
Darby, 72 AD3d 1280, 1283 [2010], lv denied 15 NY3d 749 [2010]).
                              -4-                105185

      Defendant's claim that his counsel was ineffective for
failing to raise these and other objections, and to request
curative instructions, is unpersuasive inasmuch as "a defendant
is not denied the effective assistance of counsel when counsel
fails to raise issues that have little or no chance of
succeeding" (People v Rodriguez, 121 AD3d at 1440; see People v
Caban, 5 NY3d 143, 152 [2005]). "So long as the evidence, the
law, and the circumstances of a particular case, viewed in
totality as of the time of the representation, reveal that the
attorney provided meaningful representation, the constitutional
requirement will have been met" (People v Robinson, 123 AD3d at
1228 [internal quotation marks and citation omitted]; accord
People v Henry, 95 NY2d 563, 565 [2000]). Overall, the record
reflects that counsel pursued a rational strategy, effectively
cross-examined the People's witnesses, and delivered cogent
opening and closing statements, and he was able to obtain
acquittals on two of the charges. Considering the record as a
whole, we are satisfied that defendant received meaningful
representation (see People v Robinson, 123 AD3d at 1227-1228;
People v Jones, 101 AD3d 1241, 1243 [2012], lv denied 21 NY3d 944
[2013]; People v Echavarria, 53 AD3d at 864).

      Finally, as defendant concedes, consecutive sentences were
authorized and the sentences for each count are less than the
maximum. Although he does not have a significant criminal
history, Supreme Court properly based the sentence on a review of
defendant's presentence investigation report and the justifiable
conclusion that he was "a drug dealer." Accordingly, we can find
no abuse of discretion or extraordinary circumstances warranting
reduction of the sentence (see People v Acevedo, 118 AD3d 1103,
1108 [2014]; People v Burroughs, 64 AD3d 894, 898-899 [2009], lv
denied 13 NY3d 794 [2009]; compare People v Roberts, 80 AD3d 787,
790-791 [2011], lv denied 16 NY3d 862 [2011]). Defendant's
remaining contentions have been considered and found to be
unavailing.

     Lahtinen, J.P., Devine and Clark, JJ., concur.
                        -5-                  105185

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
