                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 14, 2016                    105400
________________________________

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

KENNETH WILLIAMS, Also Known
   as KEN,
                    Appellant.
________________________________


Calendar Date:   February 10, 2016

Before:   Peters, P.J., Garry, Rose, Devine and Clark, JJ.

                             __________


      George J. Hoffman Jr., Albany, for appellant, and appellant
pro se.

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

                             __________


Garry, J.

      Appeal from a judgment of the Supreme Court (Breslin, J.),
rendered September 6, 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 (two counts), criminal possession of a controlled
substance in the first degree and criminal possession of a
controlled substance in the third degree.

      Following an investigation by the Attorney General's
Organized Crime Task Force, defendant and numerous other
individuals were charged in a sweeping indictment with various
crimes arising from alleged narcotics trafficking. After a
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superceding indictment was consolidated with a conspiracy count
from the original indictment, defendant eventually went to trial
on six counts: conspiracy in the second degree; criminal sale of
a controlled substance in the first degree (two counts); criminal
possession of a controlled substance in the first degree;
criminal possession of a controlled substance in the third
degree; and operating as a major trafficker. He was tried
jointly with three codefendants, two of whom – Juan Rivera Baez
and Lashon Turner – pleaded guilty during trial. The third,
Norman Whitehead Jr., was found guilty of nine counts, two of
which this Court subsequently reversed (People v Whitehead, 130
AD3d 1142 [2015], lv granted 26 NY3d 1043 [2015]). Defendant was
acquitted of operating as a major trafficker, but found guilty of
the remaining five counts. He was sentenced as a second felony
offender to an aggregate prison term of 42 years and five years
of postrelease supervision.

      Defendant argues that his convictions are not supported by
legally sufficient evidence and are against the weight of the
evidence. Initially, we note that, as defendant did not renew
the motion to dismiss at the close of his proof, his argument
that the verdict is not supported by legally sufficient evidence
is unpreserved (see People v Valverde 122 AD3d 1074, 1075 [2014];
People v Smith, 96 AD3d 1088, 1088 [2012], lv denied 20 NY3d 935
[2012]). "Nevertheless, since defendant also attacks the verdict
as against the weight of the evidence, we will consider the
evidence adduced as to each of the elements of the challenged
crimes in the context of that review" (People v Vargas, 72 AD3d
1114, 1116 [2010], lv denied 15 NY3d 758 [2010] [citation
omitted]; see People v Race, 78 AD3d 1217, 1219 [2010], lv denied
16 NY3d 835 [2011]). Where, as here, "it would have been
reasonable for the factfinder to reach a different conclusion,
then [we] must, like the trier of fact below, weigh the relative
probative force of conflicting testimony and the relative
strength of conflicting inferences that may be drawn from the
testimony" (People v Romero, 7 NY3d 633, 643 [2006] [internal
quotation marks and citation omitted]; see People v Danielson, 9
NY3d 342, 348-349 [2007]; People v Bleakley, 69 NY2d 490, 495
[1987]).
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      The People's proof focused primarily on two purported
cocaine transactions. The first of these took place on February
25, 2011 and provided the basis for the first count of criminal
sale of a controlled substance in the first degree. A second
transaction on February 27, 2011 led to the second criminal sale
in the first degree count, as well as the charges of criminal
possession of a controlled substance in the first degree and
criminal possession of a controlled substance in the third
degree. The first degree sale and possession charges are the
class A felonies that defendant allegedly conspired with others
to perform, underlying the count of conspiracy in the second
degree.

      Broadly stated, the People's theory was that defendant, who
was based in New York City, was a supplier of cocaine to upstate
sellers, including codefendant Whitehead, who is his half
brother; Whitehead then sold the cocaine obtained from defendant
to individuals in the Albany area, including Carl Goodson and
Karashan Mansaray, both of whom cooperated with the People. At
trial, Dennis Guiry, an investigator with the Organized Crime
Task Force who had extensive experience in narcotics
investigations, provided his interpretation of the coded language
used in intercepted communications among the individuals
involved. On the day before the February 25, 2011 transaction,
Whitehead called defendant and, in coded language, discussed
purchasing cocaine and the price per gram. Whitehead was also in
contact with Goodson – a user and seller of cocaine who had
purchased from Mansaray – and they discussed Goodson's need for a
new supplier. On February 25, defendant informed Whitehead that
he had cocaine for him. Whitehead traveled to New York City and
was in telephone contact during the day with defendant and
Goodson, who was also in New York City that day. A drug
transaction was discussed and Whitehead met defendant;
immediately thereafter, Whitehead contacted and met with Goodson.
Goodson testified that he purchased 30 grams of cocaine from
Whitehead during this meeting and that he used some of the
product, which he opined was cocaine. Thereafter, separate phone
conversations by Whitehead with Goodson and Mansaray revealed
that Whitehead also cooked 120 grams of cocaine from this
transaction into crack cocaine.
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      With respect to the February 27, 2011 transaction,
intercepted calls between defendant and Whitehead revealed that,
using coded language, Whitehead initially told defendant that he
wished to purchase 300 grams of cocaine. Whitehead expressed
concern that Mansaray, his potential buyer, was growing impatient
and might use another supplier; this concern was confirmed by
Mansaray himself in other intercepted calls. Mansaray testified
that he discussed a purchase of 500 grams of cocaine with
Whitehead, and that he was willing to meet defendant, but
Whitehead determined that it would be better if Whitehead did so.
Defendant and Whitehead discussed meeting at a shopping plaza in
Orange County, and Whitehead told defendant that he now wanted
480 grams of cocaine, which he planned to combine with an
additive bringing it to the 500 grams requested by Mansaray. On
February 27, defendant and Whitehead were observed by police
meeting at the shopping plaza. Whitehead was then followed back
to the City of Albany; during this trip he called Mansaray,
confirmed that everything was "good" and made plans to meet at a
designated location. After stopping briefly at his residence,
Whitehead proceeded to the designated meeting place where, by
Mansaray's testimony, Whitehead sold 500 grams of cocaine to
Mansaray.

      Defendant argues that his coded language pertained not to
cocaine but to marihuana. However, the jury heard and rejected
this argument. Defendant further argues that the People failed
to produce any actual cocaine linked to him. As explained within
Whitehead's appeal from their joint trial, however, witnesses who
were involved in the transactions and had extensive firsthand
knowledge about the use of cocaine did confirm that the substance
was, in fact, cocaine. The jury was entitled to credit their
testimony (see People v Whitehead, 130 AD3d at 1145). Moreover,
as we noted in Whitehead, the People presented proof of
intercepted phone calls, explanations of coded language,
movements and actions by defendant and his coconspirators
consistent with planned transactions discussed in their phone
calls, and testimony from individuals involved at various levels
of the transactions (id. at 1144-1145). Viewing the evidence in
a neutral light while according deference to the jury's
credibility determinations, the weight of the evidence supports
defendant's convictions (see People v Brabham, 126 AD3d 1040,
                              -5-                105400

1043 [2015], lvs denied 25 NY3d 1160, 1171 [2015]; People v
Ormsby, 119 AD3d 1159, 1160 [2014], lv denied 24 NY3d 963
[2014]).

      We reject defendant's contention that evidence obtained
from an eavesdropping warrant should have been suppressed on the
ground that the warrant application was based upon false
representations by the People. The application was based upon a
police detective's affidavit asserting, among other things, that
Whitehead was seen placing a plastic bag in the trunk of his car
during the meeting with defendant at the shopping plaza. The
detective who signed the affidavit stated therein that he did not
observe the transaction itself, but viewed a videotape taken by
another detective and saw "a plastic bag containing what appears
to be cocaine." Following the denial of defendant's omnibus
motion – which had sought to suppress evidence obtained from the
eavesdropping warrant on other grounds – defendant moved for
renewal and submitted enhanced still photographs taken from the
video that, according to defendant, revealed that the item placed
in the trunk was not a bag of powder, but a jug of windshield
washer fluid. In opposing the motion, the People asserted that
all of the prosecutors and law enforcement officers who saw the
video before it was enhanced believed that the object was a
plastic bag of cocaine, and that even after defense counsel
obtained the enhanced still pictures, some officers continued to
believe that the object was a bag.1

      Supreme Court refused to suppress the evidence, finding
that whether the item in the enhanced photographs was a bag or a
jug was a factual question for the jury, and that there was
significant other evidence that a drug transfer had taken place,
including, among other things, transcripts of wiretapped
conversations among defendant, Whitehead and the other
individuals involved in the transaction and observations of their


    1
        Even at trial, the detective who observed and videotaped
the transaction testified that it was difficult to tell what was
depicted in the enhanced photographs and that he continued to
believe that the item looked more like a bag than a jug in some
of the photos.
                              -6-                105400

conduct. The court properly refused to suppress the evidence
obtained under the eavesdropping warrant on this basis, as
defendant did not meet his burden to prove that the statements in
the warrant application "were knowingly false or made in reckless
disregard of the truth" (People v Griffin, 234 AD2d 718, 720
[1996], lv denied 89 NY2d 1036 [1997]; see Franks v Delaware, 438
US 154, 155-156 [1978]; People v Ronning, 137 AD2d 43, 46 [1988],
lv denied 72 NY2d 866 [1988]). Moreover, even if the statements
pertaining to the item in the trunk were excluded, the
affidavit's remaining content was sufficient to demonstrate the
existence of probable cause (see Franks v Delaware, 438 US at
156). Defendant's remaining appellate challenges to the
eavesdropping warrant are unpreserved (see People v Whitehead,
130 AD3d at 1145; People v DePonceau, 96 AD3d 1345, 1346 [2012],
lv denied 19 NY3d 1025 [2012]).

      Supreme Court did not err in denying defendant's request to
submit various lesser included offenses to the jury. "A
defendant is entitled to a lesser included offense charge upon
showing, first, that it is impossible to commit the greater crime
without committing the lesser and, second, that a reasonable view
of the evidence supports finding that defendant committed the
lesser but not the greater offense" (People v Fairley, 63 AD3d
1288, 1289 [2009], lv denied 13 NY3d 743 [2009] [internal
quotation marks and citations omitted]; see People v Barney, 99
NY2d 367, 371 [2003]). Defendant argues that his requests for
lesser included offenses based upon the weight of cocaine should
have been granted, as no cocaine was recovered and weighed.
However, the only proof at trial regarding the quantity of
cocaine in each transaction indicated large quantities,
establishing the charged first degree crimes. There was no
evidence for a jury to conclude that a sale or possession
occurred, but for a lesser quantity of cocaine. Thus, "without
resorting to speculation, there is no reasonable view of the
evidence which would support a finding that the defendant
committed [the] lesser offense but did not commit the greater"
(People v Lane, 241 AD2d 763, 765 [1997], lv denied 91 NY2d 875
[1997] [internal quotation marks, brackets and citation omitted];
see People v Flores, 84 NY2d 957, 960 [1994]; People v Acevedo,
118 AD3d 1103, 1107 [2014], lv denied 26 NY3d 925 [2015]).
                              -7-                105400

      Several of defendant's remaining arguments are essentially
the same as those deemed to be unpersuasive in the appeal of his
codefendant Whitehead. These include whether the conspiracy and
sales charges were duplicitous, whether the prosecutor's comments
before the jury about the law deprived defendant of a fair trial,
and whether there were improprieties before the grand jury that
merit reversal (People v Whitehead, 130 AD3d at 1143). Nothing
in defendant's arguments persuades us that these issues should be
decided differently upon this appeal.

      Defendant raises several arguments regarding his sentence.
With respect to his second felony offender status, he admitted to
a prior federal felony conviction for attempted possession of
cocaine with intent to distribute, and his current argument that
this crime has no New York equivalent is unpreserved (see People
v Smith, 73 NY2d 961, 962-963 [1989]; see also People v Jurgins,
26 NY3d 607, 611-612 [2015]). Although defendant received a
sentence substantially longer than the 10 years offered early in
the proceedings, there is no evidence that he was penalized for
exercising his right to a jury trial (see People v Cruz, 131 AD3d
724, 728 [2015], lv denied 26 NY3d 1087 [2015]; People v
Rodriguez, 121 AD3d 1435, 1443 [2014], lv denied 24 NY3d 1122
[2015]; People v Danford, 88 AD3d 1064, 1068-1069 [2011], lv
denied 18 NY3d 882 [2012]). Defendant's sentence, while lengthy,
did not constitute an abuse of discretion, nor are there
extraordinary circumstances meriting reduction (see People v
Grajales, 294 AD2d 657, 659 [2002], lv denied 98 NY2d 697 [2002];
People v Valencia, 263 AD2d 874, 877 [1999], lv denied 94 NY2d
799 [1999]; People v Morgan, 253 AD2d 946, 946 [1998], lv denied
92 NY2d 950 [1998]). Supreme Court imposed less than the maximum
permissible sentence, defendant's history included a drug-related
federal felony conviction and a state felony conviction for
possessing a loaded weapon and, as the court stated at
sentencing, the transactions underlying the current crimes
involved substantial quantities of cocaine.

      The remaining arguments have been considered and are
unavailing.
                        -8-                  105400

Peters, P.J., Rose, Devine and Clark, JJ., concur.



ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
