                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: October 30, 2014                     106274
________________________________

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

JOSE A. RODRIGUEZ,
                    Appellant.
________________________________


Calendar Date:   September 12, 2014

Before:   Peters, P.J., Stein, Garry, Egan Jr. and Clark, JJ.

                               __________


     Matthew C. Hug, Troy, for appellant.

      John M. Muehl, District Attorney, Cooperstown (Michael F.
Getman of counsel), for respondent.

                               __________


Garry, J.

      Appeal from a judgment of the County Court of Otsego County
(Burns, J.), rendered December 22, 2011, upon a verdict
convicting defendant of the crimes of operating as a major
trafficker and criminal sale of a controlled substance in the
third degree (four counts).

      Following a lengthy police investigation, defendant, a
resident of the Bronx, was charged with various crimes arising
out of his alleged management of a heroin distribution ring in
Otsego County. He was tried by a jury and convicted of the crime
of operating as a major trafficker, as well as four counts of
                                 -2-                106274

criminal sale of a controlled substance in the third degree.1
County Court denied defendant's motion to set aside the verdict
and sentenced him to a prison term of 20 years with five years of
postrelease supervision on the major trafficking count and four
five-year prison terms, each with three years of postrelease
supervision, on the criminal sale counts, all sentences to be
served consecutively. Defendant appeals.

      Defendant contends that his convictions were not supported
by legally sufficient evidence and were against the weight of the
evidence, basing these arguments primarily upon the claim that
the People relied upon inadequately corroborated accomplice
testimony. As an initial matter, the corroboration argument is
preserved only as to the charge of operating as a major
trafficker, as defendant specifically raised that claim when he
moved to dismiss the trafficking charge at the close of proof,
but did not include it in his more general motion to dismiss the
other charges (see People v Gray, 86 NY2d 10, 19 [1995]; People v
Hilliard, 49 AD3d 910, 912 [2008], lv denied 10 NY3d 959 [2008]).
Nevertheless, in assessing defendant's claim that all of his
convictions are against the weight of the evidence, this Court
necessarily determines whether each element of the crimes was
proven beyond a reasonable doubt (see People v Danielson, 9 NY3d
342, 348-349 [2007]; People v Gaudiosi, 110 AD3d 1347, 1348
[2013], lv denied 22 NY3d 1040 [2013]).

      Penal Law § 220.77, which established the crime of
operating as a major trafficker, was enacted as part of the Drug
Law Reform Act of 2009 (see L 2009, ch 56, part AAA, § 29; see
generally William C. Donnino, Practice Commentary, McKinney's
Cons Laws of NY, Book 39, Penal Law § 220.77, 2014 Pocket Part at
122-125). As pertinent here, a person commits the crime of
operating as a major trafficker when he or she "acts as a
director of a controlled substance organization" during a period
of 12 months or less in which the organization sells a controlled


    1
        Defendant was charged   with seven additional counts of
criminal sale of a controlled   substance in the third degree, but
County Court dismissed one of   these charges prior to the close of
proof, and the jury acquitted   defendant of the remainder.
                              -3-                106274

substance or substances, and the proceeds due or collected from
such sales have a total value of at least $75,000 (Penal Law §
220.77 [1]). A controlled substance organization is defined as
"four or more persons sharing a common purpose to engage in
conduct that constitutes or advances the commission of a felony
under [Penal Law article 220]" (Penal Law § 220.00 [18]), and a
director is "the principal administrator, organizer[] or leader"
of such an organization, or one of several such persons (Penal
Law § 220.00 [19]).

      The People sought to prove that defendant acted as the
director of a controlled substance organization for the requisite
time period by presenting the testimony of a number of witnesses
who had allegedly purchased heroin from defendant and/or worked
for him by selling, distributing and delivering heroin, in
addition to other testimony.2 The broad outline of the operation
revealed by the testimony was that defendant – located in New
York City and using the nickname "Flip" instead of his real name
– used throw-away cell phones with numbers that frequently
changed to maintain contact with numerous individuals in the City
of Oneonta, Otsego County, who followed his directions to sell


    2
        At the close of proof, defense counsel pointed out that
the indictment alleged that defendant operated as a major
trafficker from September 1, 2009 to September 1, 2010, but Penal
Law § 220.77 did not take effect until November 1, 2009.
Accordingly, County Court instructed the jury to base its
determination of the trafficking charge only upon evidence of
acts transpiring between November 1, 2009 and September 1, 2010.
As there was no objection to this charge, defendant's contention
that the instruction was impermissible was not preserved (see CPL
470.05 [2]; People v Green, 119 AD3d 23, 30 [2014], lv denied 23
NY3d 1062 [2014]; People v Williams, 28 AD3d 1005, 1009 [2006],
lv denied 7 NY3d 819 [2006]). In any event, we would have found
no error, as the instruction neither altered the theory of the
prosecution nor prejudiced defendant on the merits (see People v
Charles, 61 NY2d 321, 328-329 [1984]; People v Ardrey, 92 AD3d
967, 970-971 [2012], lv denied 19 NY3d 861 [2012]; People v
Dorfeuille, 91 AD3d 1023, 1024 [2012], lv denied 19 NY3d 996
[2012]).
                               -4-                106274

heroin that he supplied to purchasers in that city, and who were
paid for their efforts with heroin to support their drug habits.
Oneonta narcotics detectives Branden Collison and Christopher
Witzenburg testified to describe their lengthy investigation into
defendant's Oneonta heroin operation, their encounters with the
various witnesses and defendant's ultimate arrest. A
confidential informant (hereinafter CI) testified that he
cooperated with Collison by performing several controlled buys
involving heroin supplied by defendant, including one in June
2010.

      A female witness testified that before 2009, she had
obtained heroin for her personal use by calling defendant – whom
she knew as Flip – on a cell phone; he would then direct her to
varying locations in Oneonta where she would be met by persons
working for defendant who provided her with heroin and accepted
her payments. In 2009, she began working for defendant in
exchange for payments of heroin, and continued to do so "for a
year and a half . . . almost two years" until she was arrested in
February 2010. In this capacity, she received phone calls from
defendant in which he told her where to meet buyers whom she
would supply with heroin that she had obtained from defendant,
either by traveling to New York City to pick it up or by
receiving it from individuals who transported it from New York
City at defendant's direction. This witness testified that she
made at least 40 or 50 trips to New York City, generally met
defendant at hotels in the Bronx, took between $2,000 and $5,000
in heroin payments to him on each trip and returned with 20 or 30
"bundles" of heroin for sale in Oneonta.3 She also sometimes
wired money to defendant via Western Union, using names and New
York City addresses that he furnished. She testified that,
during this period, she sold an average of 80 to 100 bags of
heroin daily at $20 per bag; based on this testimony, the jury
could have found that she sold over $150,000 worth of heroin at
defendant's behest between November 2009 and February 2010.




     3
        A "bundle" of heroin was described in the course of other
testimony as being comprised of 10 small glassine bags.
                              -5-                106274

      A second female witness testified that she worked for
defendant, whom she knew as Flip, during an 18-month period
ending with her arrest in June 2010, by making approximately 30
to 40 trips to New York City to obtain heroin, meeting defendant
or persons working for him at hotels in the Bronx, and
transporting 10 to 20 bundles of heroin back to Oneonta after
each trip. She stated that she did not handle money during these
trips, which was carried by others with whom she traveled,
including the first female witness. However, she said that she
wired money on several occasions to defendant using Bronx
addresses that he provided. This witness testified that she also
acted as an intermediary for heroin buyers in Oneonta by calling
defendant on their behalf and then following his instructions as
to where to meet his agents to complete the sale. She testified
that "maybe 15 different people" delivered drugs to her from
defendant during these transactions, and that she was paid for
her activities in heroin.

      A male witness testified that he first made telephone
contact with defendant – whom he knew as Flip and never met in
person – in early 2010 when he called what he believed to be the
cell phone number of the first female witness, seeking to buy
heroin, and defendant answered the phone. Thereafter, he spoke
by telephone "almost every day" for "at least a month" with
defendant, who would direct him to an Oneonta location where he
would meet someone who would sell him heroin. After the male
witness offered to work for defendant in exchange for drugs,
defendant had him pick people up at bus stations and transport
them to Oneonta to sell heroin. At defendant's direction, the
male witness also rented an Oneonta apartment used as a stash
house, where he and other people stored heroin supplied by
defendant and then sold it as defendant directed. The witness
testified that the stash house arrangement lasted for several
weeks until he was arrested in February 2010. During this
period, the witness made approximately a dozen $8,000 to $10,000
wire transfers to New York City addresses supplied by defendant.

      Contrary to defendant's claim, there was adequate
corroboration for the testimony of these accomplice witnesses. A
defendant may not be convicted solely on the basis of accomplice
testimony that lacks the support of "corroborative evidence
                              -6-                106274

tending to connect the defendant with the commission of [the
charged] offense" (CPL 60.22 [1]). Nevertheless, the People are
not required to furnish independent evidence that establishes
every element of the offense in question, or even a single
element; instead, corroborative evidence need only "tend[] to
connect the defendant with the commission of the crime in such a
way as may reasonably satisfy the jury that the accomplice is
telling the truth" (People v Reome, 15 NY3d 188, 191-192 [2010]
[internal quotation marks and citation omitted]; see People v
Lloyd, 118 AD3d 1117, 1121 [2014]; People v Forbes, 111 AD3d
1154, 1156-1157 [2013]). Here, the testimony of both female
witnesses was corroborated by that of the narcotics detectives,
who testified that they used CIs to make controlled heroin
purchases from each of the women, and that these purchases were
initiated by contact with defendant or his employees and
conducted according to the procedures described by the witnesses.
The testimony of the first male witness was corroborated by the
same two detectives. Witzenburg testified that he arrested the
witness after observing what appeared to be a drug transaction at
a residence in Oneonta and found 56 bags of heroin in his car.
After the witness stated that additional heroin could be found in
the stash house, Collison searched it and found an additional 250
bags. Collison further determined that the stash house had been
leased in the name of this witness shortly before his arrest.
Corroborative evidence need not prove the commission of the
crime, directly link a defendant to the crime or "lead
exclusively to the inference of the defendant's guilt" (People v
Medeiros, 116 AD3d 1096, 1099 [2014] [internal quotation marks
and citations omitted]). Here, the police testimony confirming
certain details of defendant's alleged operation as described by
the accomplices was sufficient to support a reasonable inference
that he was involved and to satisfy the "minimal corroboration
requirements" of CPL 60.22 (1) (People v Lloyd, 118 AD3d at 1121;
see People v Matthews, 101 AD3d 1363, 1365 [2012], lvs denied 20
NY3d 1101, 1104 [2013]; People v Pagan, 97 AD3d 963, 965 [2012],
lv denied 20 NY3d 934 [2012]).

      Additionally, the People presented the testimony of two
other witnesses who allegedly worked for defendant – whom they
called Flip – by conducting heroin transactions in Oneonta. The
testimony of these two witnesses is largely irrelevant to the
                              -7-                106274

trafficking charge, as they described actions occurring before
November 2009. Nevertheless, among other details, these
witnesses confirmed that defendant used the nickname Flip.
Another male witness testified that between 2009 and
approximately June 2010, while residing in the City of Albany, he
assisted defendant – known to him as Flip – in expanding his
heroin operation into the Albany area. This witness began the
Albany operation by distributing free heroin samples furnished by
defendant, and thereafter sold heroin supplied by defendant,
following instructions conveyed by defendant over the phone.
This witness testified that he was aware that defendant was
conducting a similar operation in Oneonta, that he sometimes
delivered heroin from defendant to Oneonta for use in that
operation, and that he sometimes carried money from Oneonta to
defendant in the Bronx. In July 2010, defendant asked this
witness to relocate to Oneonta to oversee operations there. He
testified that he did so, but was arrested almost immediately
thereafter while trying to make a heroin sale. Defendant
contends upon appeal that County Court lacked geographical
jurisdiction over the activities of this witness in Albany. This
issue was not preserved by an objection at trial; even if
preserved, it is unclear how this would have affected the
admissibility of the testimony, as defendant, not the witness,
was the subject of the prosecution (see People v Banks, 38 AD3d
938, 939 [2007], lv denied 9 NY3d 840 [2007]). Contrary to
defendant's claim, no Ventimiglia hearing was required, as the
testimony of this witness did not address uncharged crimes or bad
acts and was not introduced to suggest propensity, but was
instead relevant to the charge that defendant directed a
controlled substance organization in Oneonta (compare People v
Brown, 114 AD3d 1017, 1019-1020 [2014]). We reject defendant's
claim that his counsel was ineffective for failing to raise these
issues, 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 (see People v Stultz, 2 NY3d 277, 287
[2004]; People v Brock, 107 AD3d 1025, 1029 [2013], lv denied 21
NY3d 1072 [2013]).

      Viewing the testimony in the light most favorable to the
People, we find a valid line of reasoning and permissible
inferences that could lead rational persons to the conclusion
                              -8-                106274

reached by the jury (see People v Galindo, 23 NY3d 719, 724
[2014]). The testimony as to the monetary value of the heroin
transactions during the pertinent time period – specifically, the
testimony of the first female witness as to the amounts of heroin
that she sold and, separately, that of the male witness as to the
amounts of his wire transfers – was more than adequate to satisfy
the monetary threshold of $75,000 (see Penal Law § 220.77 [1]).
Further, the testimony of the accomplice witnesses as to their
own involvement, that of defendant, and that of multiple other
persons who they testified also worked for defendant as sellers
and drug couriers in the Oneonta heroin operation was sufficient
to establish that a controlled substance organization existed
that consisted of four or more persons, each of whom shared in a
common purpose to commit drug felonies under Penal Law article
220 by selling heroin (see Penal Law § 220.00 [18]; William C.
Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book
39, Penal Law § 220.77, 2014 Pocket Part at 125). Finally, the
witness testimony describing defendant's management of the
Oneonta operation by, among other things, supplying the heroin,
supervising and directing the workers, communicating with buyers
and sellers to schedule heroin transactions, and collecting the
proceeds sufficiently established that he was a "principal
administrator, organizer[] or leader" of the organization (Penal
Law § 220.00 [19]). Notably, nothing in Penal Law § 220.77 (1)
requires a showing that an alleged director is the only
administrator, organizer or leader of a controlled substance
organization, nor does the statute require that he or she
personally conduct each transaction, "or perhaps even know of a
particular sale" (William C. Donnino, Practice Commentary,
McKinney's Cons Laws of NY, Book 39, Penal Law § 220.77, 2014
Pocket Part at 125). As to defendant's contention that most of
the People's witnesses were unworthy of belief, in that they were
former heroin users who cooperated with the People in exchange
for less stringent treatment of their own illegal conduct, these
issues were vigorously explored in cross-examination, and the
jury was free to credit or discredit their testimony as it saw
fit (see People v Anderson, 118 AD3d 1138, 1142 [2014]).
Deferring to these credibility assessments and viewing the
evidence in a neutral light, we are satisfied that the verdict
convicting defendant of operating as a major drug trafficker was
in accord with the weight of the evidence (see Penal Law 220.77
                              -9-                106274

[1]; see generally People v Danielson, 9 NY3d at 348-349).

      Defendant's remaining four convictions for criminal sale of
a controlled substance in the third degree were based on
controlled heroin buys from the female witnesses and an
additional unidentified seller. As to each, defendant argues
that the People failed to support their theory of accomplice
liability by proving beyond a reasonable doubt that defendant
knowingly and unlawfully "solicit[ed], request[ed], command[ed],
importun[ed] or intentionally aid[ed]" in the transactions (Penal
Law § 20.00; see Penal Law § 220.39 [1]). We disagree. The
first conviction was based upon a September 2009 controlled buy
set up by Witzenburg, who testified that he used a CI to purchase
$100 worth of heroin from the first female witness. While the
female witness did not testify specifically about this
transaction, she stated that she sold to the particular CI in
question "quite often." The second challenged conviction
involved a controlled buy involving a different CI, which was set
up by Collison and took place in January 2010. The first female
witness testified that she sold heroin to this CI near a school
building in the Village of Cooperstown, Otsego County, and
Collison confirmed that this was the location of the January 2010
purchase. Based upon the testimony of the female witness that
defendant was the supplier of the heroin that she sold during the
time periods in question, the jury could reasonably have inferred
that defendant aided both sales by supplying the heroin (see
People v Harris, 288 AD2d 610, 617 [2001], affd 99 NY2d 202
[2002]).

      The third criminal sale conviction involved a May 2010
controlled buy set up by Collison, who testified that he watched
a CI send a text message to the second female witness to arrange
the purchase. Collison and the CI then traveled to the Oneonta
home of this witness, where a third party sold heroin to the CI.
The second female witness confirmed that she brokered such a deal
at her home, explaining that the CI called her and asked her to
contact defendant to arrange the sale, that she did so, and that
defendant then sent the third party to her house – thus
establishing defendant's assistance in the sale. The final count
was based upon a June 2010 controlled buy, as to which a CI
testified that, while sitting in Collison's car, he arranged a
                              -10-               106274

heroin transaction by telephoning defendant – whose telephone
number and voice he knew from previous heroin transactions – and
then traveled with Collison to the location that defendant
designated, where he purchased heroin from a seller whom the CI
identified as Bobby Colone. Collison confirmed this account and
further testified that, from the driver's seat of his car, he was
able to overhear and understand defendant's side of the telephone
conversation with the CI. Defense counsel vigorously challenged
this testimony on cross-examination. Further, Colone testified
for defendant and claimed that the transaction in question
involved marihuana, rather than heroin. However, these issues
presented credibility issues for the jury to resolve. According
the jury's determinations appropriate deference, we find that the
weight of the evidence supports all four convictions (see People
v Wilson, 100 AD3d 1045, 1046 [2012], lv denied 22 NY3d 999
[2013]; People v Green, 90 AD3d 1151, 1153-1154 [2011], lv denied
18 NY3d 994 [2012]).

      Defendant next contends that his sentence is harsh and
excessive. However, the disparity between the sentence imposed
by County Court and a shorter sentence offered by the People
before trial, without more, does not demonstrate that defendant
was improperly punished for exercising his right to go to trial,
and nothing else in the record supports this claim or reveals any
abuse of discretion or extraordinary circumstances warranting
modification (see People v Acevedo, 118 AD3d 1103, 1108 [2014];
People v Olson, 110 AD3d 1373, 1377-1378 [2013], lv denied 23
NY3d 1023 [2014]). County Court was authorized to impose a
maximum indeterminate life term with a minimum term of 15 to 25
years for defendant's conviction for operating as a major
trafficker (see Penal Law §§ 70.00 [2] [a]; [3] [a] [i]; 70.71
[5] [b]), but instead elected to sentence defendant to a
determinate term of 20 years, the maximum term permitted under
this option (see Penal Law § 70.71 [2] [b] [1]; [5] [c]). The
court extensively discussed its reasons for rejecting defendant's
plea for leniency and imposing a lengthy sentence, including the
serious harm caused by defendant's conduct to the affected
individuals and the community, his failure to show remorse or
insight, his extensive prior criminal history – which included a
previous conviction for selling heroin in Oneonta – and his
criminal character as revealed by these factors. The court
                              -11-                 106274

stated that its ultimate intent in imposing this lengthy sentence
was to ensure that defendant would never have another opportunity
to return to the community to sell heroin.

      We note that in sentencing defendant to a determinate term
on the trafficking conviction, County Court failed to set forth
upon the record an express finding that it would have been unduly
harsh to impose an indeterminate term, as required by Penal Law §
70.71 (5) (c). Nevertheless, the only purpose that would be
served by remitting for resentencing here would be "as a means of
pointing out that the statute was not followed to the letter"
(People v Esteves, 41 NY2d 826, 827 [1977]). It has been held in
reviewing other sentencing provisions that statutory requirements
of this nature are imposed "to aid the court in focusing upon the
purpose of the sentence and as a method of explaining the
sentence to the public and the offender" (People v Frey, 100 AD2d
728, 728 [1984], lv denied 62 NY2d 806 [1984]; see e.g. Penal Law
§§ 70.10 [2]; 70.25 [2-b]). Here, we find that these purposes
were fulfilled by the court's detailed remarks, and the record
was fully adequate to permit appellate review of defendant's
claim that his sentence was excessive. Accordingly, upon the
record presented, we need not vacate the sentence and remit for
resentencing (see People v Rojas, 42 NY2d 1035 [1977]; People v
Esteves, 41 NY2d at 827; People v Adkins, 298 AD2d 991, 991
[2002], lv denied 99 NY2d 554 [2002]; People v Riss, 58 AD2d 697,
698 [1977]).

     Peters, P.J., Stein, Egan Jr. and Clark, JJ., concur.


     ORDERED that the judgment is affirmed.



                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
