Opinion
September 18, 1990
Appeal from the Supreme Court, New York County (Edward McLaughlin, J.).
The defendant's conviction arose out of an investigation in August 1988 into the cocaine trafficking of defendant and his codefendants, Hernando Rizo, Fernando Franco, Maribel Diaz, Luis Hernandez and Luis Medina.
Rizo was the leader of a cocaine wholesale business in which defendant, Diaz and Franco assisted him. Hernandez and Medina were distributors who acquired their inventory from Rizo. During the investigation, defendant was observed bringing boxes and duffel bags into Rizo's apartment building. Defendant and Franco were also observed transferring duffel bags from their vehicle that had been taken from Rizo's apartment building to Medina and Hernandez' vehicle at the A S mall. Hernandez and Medina were followed back to 146-27 Reeves Avenue, Queens, where the duffel bags were taken. A search later that day of those premises resulted in the recovery of 107 kilos of cocaine. A search of Rizo's apartment resulted in the seizure of 2,041 kilos of cocaine.
The trial court did not abuse its discretion by denying defendant's motion for a severance. "Where proof against the defendants is supplied by the same evidence, only the most cogent reasons warrant a severance". (People v. Bornholdt, 33 N.Y.2d 75, 87.) Public policy favors joint trials for judicial expediency. (People v. Mahboubian, 74 N.Y.2d 174, 183.) Defendant was not unduly prejudiced by being jointly tried; he was still able to assert his defense of being an unknowing participant.
Defendant's transfer of drugs to a codefendant constituted the crime of criminal sale of a controlled substance in the first degree. In People v. Lam Lek Chong ( 45 N.Y.2d 64, 72), the court recognized that the delivery of drugs in sophisticated drug transactions would constitute a sale under the statute.
"Sell" means to sell, exchange, give or dispose of to another, or to offer or agree to do the same. (Penal Law § 220.00.)
It was not inflammatory to allow the prosecutor to state that over two tons of cocaine were seized when only a portion was tested. A sufficient number of randomly selected samples were tested allowing the jury to make a reasonable inference that all kilos contained cocaine.
Furthermore, we do not find that the sentence imposed was unduly harsh or excessive. Defendant played an integral part in the operation. In view of the large number of drugs recovered and defendant's constant presence, it is inconceivable that defendant did not know what he was transferring. Considering the particular circumstances in this case, the trial court did not abuse its exercise of discretion which would warrant a reduction in the sentence. (People v. Farrar, 52 N.Y.2d 302.)
We have reviewed defendant's remaining contentions and find them to be without merit.
Concur — Ross, J.P., Rosenberger, Kassal, Wallach and Rubin, JJ.