The People, Respondent,v.Antonio Rodriguez, Appellant.

Brief

N.Y.March 19, 2013

To be argued by TIMOTHY C. STONE (15 Minutes Requested) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - MIGUEL MEJIAS and ANTONIO RODRIGUEZ, Defendants-Appellants. BRIEF FOR RESPONDENT CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov DANA POOLE TIMOTHY C. STONE ASSISTANT DISTRICT ATTORNEYS Of Counsel OCTOBER 19, 2012 -ii- TABLE OF CONTENTS Page Table of Authorities .............................................................................................................. iii Introduction ............................................................................................................................ 1 Statement of the Case ............................................................................................................ 2 Appeal to the Appellate Division, First Department ......................................................... 3 The Evidence at Trial ............................................................................................................. 5 The People’s Case ................................................................................................................... 5 Defendant Mejias, defendant Rodriguez, and Loveras conduct a practice run of the planned drug delivery. .................................................................. 8 Defendant Mejias and Lantigua wire money to Mexico and Costa Rica. ......................................................................................................................... 11 Defendant Mejias, defendant Rodriguez, and Loveras prepare for the arrival of the drug-filled tractor trailer. ....................................................... 12 The cocaine-filled tractor trailer arrives but will not fit in Luna’s driveway. Defendant Mejias guards the trailer while Loveras works with defendant Rodriguez to find an alternative stash house. .......................... 14 Defendant Mejias, defendant Rodriguez, and their cohorts are arrested next to the tractor trailer, which contains 400 pounds of cocaine worth $14 million. ..................................................................................................... 17 Defendants’ Cases ................................................................................................................ 20 Rodriguez’s Case ................................................................................................................... 20 Mejias’s Case ......................................................................................................................... 20 -ii- POINT I THE TRIAL JUDGE ACTED WITHIN HER DISCRETION IN RESPONDING TO A JUROR’S REQUEST TO HEAR ADDITIONAL TESTIMONY ABOUT A PARTICULAR TOPIC. .......................................................... 20 The Relevant Record..................................................................................... 21 Preservation .................................................................................................... 23 Analysis ........................................................................................................... 26 POINT II THE TRIAL COURT’S RULINGS, ALLOWING BACKGROUND EVIDENCE IN RELATION TO THE PRACTICES OF LARGE-SCALE NARCOTICS TRAFFICKERS, WAS PROPER IN THIS CASE INVOLVING THE INTERNATIONAL SHIPMENT AND DELIVERY OF 400 POUNDS OF COCAINE.......................... 41 A. ..................................................................................................................... 42 B. ...................................................................................................................... 45 CONCLUSION ................................................................................................................... 53 -iii- TABLE OF AUTHORITIES FEDERAL CASES United States v. Khan, 787 F.2d 28 (2d Cir. 1986) .......................................................... 47 United States v. Young, 745 F.2d 733 (2d Cir. 1984) ...................................................... 50 STATE CASES People v. Alvino, 71 N.Y.2d 233 (1987) ....................................................................... 45-46 People v. Baker, 14 N.Y.3d 266 (2010) ............................................................................. 32 People v. Brown, 52 A.D.3d 248 (1st Dep’t 2008) .......................................................... 35 People v. Brown, 97 N.Y.2d 500 (2002) ........................................................................ 4, 46 People v. Buford, 69 N.Y.2d 290 (1987) .................................................................. 4, 26-27 People v. Clark, 81 N.Y.2d 913 (1993) .............................................................................. 27 People v. Colon, 172 A.D.2d 173 (1st Dep’t 1991) ......................................................... 49 People v. Cosby, 271 A.D.2d 353 (1st Dep’t 2000) ......................................................... 35 People v. Covington, 44 A.D.3d 510 (1st Dep’t 2007) .................................................... 37 People v. Crimmins, 36 N.Y.2d 230 (1975) ...................................................................... 52 People v. Daniels, 218 A.D.2d 589 (1st Dep’t 1995) ....................................................... 27 People v. De Jesus, 69 N.Y.2d 855 (1987) ........................................................................ 24 People v. Diaz, 181 A.D.2d 595 (1st Dep’t 1992) ............................................................ 46 People v. Garcia, 83 N.Y.2d 817 (1994) ............................................................................ 46 People v. Gonzalez, 155 A.D.2d 310 (1st Dep’t 1989).................................................... 30 People v. Gonzalez, 232 A.D.2d 204 (1st Dep’t 1996).................................................... 35 People v. Gordon, 77 A.D.2d 662 (2d Dep’t 1980) ......................................................... 36 People v. Guay, 18 N.Y.3d 16 (2011) ................................................................................ 34 People v. Hill, 85 N.Y.2d 256 (1995) ................................................................................. 46 -iv- People v. Irizarry, 83 N.Y.2d 557 (1994) ............................................................... 27-28, 37 People v. Lantigua, Mejias, and Rodriguez, 86 A.D.3d 429 (1st Dep’t 2011).............. 4-5 People v. Maldonado, 50 A.D.2d 556 (1st Dep’t 1975) .................................................. 50 People v. Matiash, 197 A.D.2d 794 (3d Dep’t 1993) ................................................. 33, 36 People v. McClenton, 213 A.D.2d 1 (1st Dep’t 1995) ..................................................... 36 People v. Mirenda, 23 N.Y.2d 439 (1969) ......................................................................... 51 People v. Negron, 136 A.D.2d 523 (1st Dep’t 1988) ....................................................... 49 People v. Ordenana, 20 A.D.3d 39 (1st Dep’t 2005) ....................................................... 36 People v. Qiang Zheng, 267 A.D.2d 257 (2d Dep’t 1999) ......................................... 30-32 People v. Rivera, 262 A.D.2d 235 (1st Dep’t 1999) ................................................... 29, 40 People v. Robinson, 88 N.Y.2d 1001 (1996)..................................................................... 26 People v. Rodriguez, 194 A.D.2d 304 (1st Dep’t 1993) ............................................. 29-30 People v. Rodriguez, 71 N.Y.2d 214 (1988) ...................................................................... 27 People v. Roman, 182 A.D.2d 519 (1st Dep’t 1992) ....................................................... 31 People v. Scarola, 71 N.Y.2d 769 (1988) ...................................................................... 45-46 People v. Silvagnoli, 251 A.D.2d 76 (1st Dep’t 1998) ..................................................... 30 People v. Singleton, 270 A.D.2d 190 (1st Dep’t 2000) .................................................... 46 People v. Soto, 172 A.D.2d 355 (1st Dep’t 1991) ............................................................ 49 People v. Taylor, 75 N.Y.2d 277 (1990) ............................................................................ 46 People v. Torres, 248 A.D.2d 167 (1st Dep’t 1998) ......................................................... 28 People v. Triplett, 305 A.D.2d 230 (1st Dep’t 2003) ....................................................... 28 -v- STATE STATUTES CPL 270.35(1) ....................................................................................................................... 26 CPL 330.30 .............................................................................................................................. 3 CPL 330.30(1) ....................................................................................................................... 37 CPL 470.05(2) ........................................................................................................... 24, 26, 45 Penal Law § 105.15 ................................................................................................................. 1 Penal Law § 220.21(1) ............................................................................................................ 1 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- MIGUEL MEJIAS AND ANTONIO RODRIGUEZ, Defendants-Appellants. BRIEF FOR RESPONDENT INTRODUCTION By permission of the Honorable Theodore T. Jones, granted on April 24, 2012, defendants Miguel Mejias and Antonio Rodriguez appeal from an order of the Appellate Division entered on July 7, 2011. That appeal affirmed judgments of the Supreme Court, New York County (Bonnie Wittner, J.), entered on September 24 and October 27, 2009, convicting defendants, after a jury trial, of Conspiracy in the Second Degree (Penal Law § 105.15) and Criminal Possession of a Controlled Substance in the First Degree (Penal Law § 220.21[1]). By those judgments, Mejias received a 13-year prison term followed by five years of post-release supervision (“PRS”) on the drug count, to run concurrently with an indeterminate prison term of from five to 15 years for the conspiracy; Rodriguez was sentenced to a 12-year prison term followed by five years of PRS for the drug conviction, to run concurrently with -2- an indeterminate prison term of from five to 15 years for the conspiracy. Defendants are both incarcerated pursuant to these judgments. Statement of the Case From April to June of 2008, a team within the New York Drug Enforcement Task Force investigated a large-scale cocaine trafficking organization run by Carlos Loveras. Surveillance and documentary evidence, coupled with information gleaned from conversations intercepted over court-authorized wiretaps, established that defendants Mejias and Rodriguez aided Loveras in planning and executing the receipt of a massive quantity of cocaine that was being delivered in a tractor trailer. On the basis of this information, on June 12, 2008, in a parking lot off the Bruckner Expressway Service Road in the Bronx, members of the task force arrested Mejias, Rodriguez, and Loveras standing next to the tractor trailer, along with its driver, Armando Magallon. The police recovered from the truck approximately 400 pounds of cocaine that had a value of roughly $14 million. By Indictment Number 2972/08, filed on June 24, 2008, a grand jury of the Special Narcotics Court charged Mejias, Rodriguez, Loveras, and Magallon with first- degree possession of a controlled substance and second-degree conspiracy.1 On July 29, 2009, defendants, along with separately-indicted codefendant Junior Lantigua, 1 Loveras pled guilty to first-degree possession of a controlled substance in exchange for a ten-year prison term, and Magallon pled guilty to the reduced charge of second-degree drug possession in exchange for a five-year prison term. Loveras and Magallon did not appeal their convictions. -3- proceeded to a joint jury trial before the Honorable Bonnie Wittner.2 On August 13, 2009, the jurors convicted defendants as charged. On September 24, 2009, the judge sentenced Mejias as noted above. Rodriguez moved pursuant to Criminal Procedure Law 330.30 to set aside the verdict; Justice Wittner denied this motion on February 9, 2010, and, that same day, sentenced Rodriguez as already stated.3 Appeal to the Appellate Division, First Department Defendants Mejias and Rodriguez, as well as Lantigua, appealed their judgments of conviction to the Appellate Division. On direct appeal, as relevant here, defendants argued that, by questioning the jury panel rather than conducting an individualized inquiry, the trial judge responded improperly to a juror’s pre- deliberation request to hear additional testimony about a particular topic. Defendants further claimed that the trial judge erred in allowing background evidence concerning the general practices of international narcotics traffickers. On July 7, 2011, a unanimous panel of the Appellate Division, First Department, affirmed the judgments of conviction against defendants and Lantigua in 2 Defendant Mejias had moved to controvert the wiretap warrant and to suppress the wiretap evidence. Also, both Mejias and Rodriguez had challenged the reliability of the procedures used to identify their voices over the wiretap. On November 10, 2008, the Honorable William A. Wetzel denied Mejias’s motion to controvert the eavesdropping warrant. On July 27, 2009, a Mapp/Wharton/Wade hearing was held before the Honorable Bonnie Wittner to resolve the remaining motions. That same day, the judge denied the defense motions in all other respects. None of these motions were contested on appeal. 3 Lantigua was convicted, as charged, of second-degree conspiracy; he received an indeterminate two to six year prison term. -4- a consolidated appeal. People v. Lantigua, Mejias, and Rodriguez, 86 A.D.3d 429 (1st Dep’t 2011) (A19-22).4 The Appellate Division held that the trial court acted properly in declining to conduct an individual inquiry upon receiving the juror’s note requesting information, which contained language “allegedly suggest[ing] the possibility of premature deliberations.” Id. at 430 (A21). The Appellate Division concluded that the judge had appropriately exercised her discretion by “address[ing] the problem” through questioning the jury as a group, “along with careful instructions.” Id. (citing People v. Buford, 69 N.Y.2d 290, 298-29 [1987]). “Given the circumstances,” the Appellate Division continued, there was “no reason to believe there were actually any premature deliberations, and the court’s actions were sufficient to avoid any prejudice.” Id. As a separate matter, the Appellate Division found that the lower court correctly allowed an expert to provide “background testimony on large-scale narcotics operations.” 86 A.D.3d at 429 (A20-21). The Appellate Division determined that this information was beyond the ken of the average juror and would aid the jury in understanding the evidence in this case, which involved “complex, international drug activity.” Id. (citing, inter alia, People v. Brown, 97 N.Y.2d 500, 505-06 [2002]). Considering the nature of the case, the Appellate Division also approved of the 4 Citations to the defense appendix are preceded by “A.” Citations to the People’s appendix are preceded by “R.” -5- judge’s decision to permit a map of the western hemisphere into evidence to help illustrate the international flow of drugs. Id. (A21).5 On April 24, 2012, Judge Jones granted the joint application of defendants Mejias and Rodriguez for leave to appeal to this Court (A16-17).6 On this appeal, defendants raise the same complaints about the trial court’s conduct that was described above and that the Appellate Division rejected. Specifically, defendants claim that Justice Wittner abused her discretion in the manner that she responded to a juror’s note requesting to hear additional evidence, and erred in allowing background evidence concerning international narcotics trafficking (Brief for Mejias, Points I and II; Brief for Rodriguez, Points I and II). THE EVIDENCE AT TRIAL The People’s Case Starting at the end of April of 2008, a team of the New York Drug Enforcement Task Force, which included Drug Enforcement Agency (“DEA”) 5 In addition, the Appellate Division rejected Lantigua’s following claims: that the interpreter who translated phone calls over the wiretap, which were admitted into evidence at trial, was unqualified to do so; that the judge had improperly discharged a sworn juror who had a malodorous body odor; and that the evidence of his guilt was legally insufficient. The Appellate Division also rejected the following arguments raised by defendant Rodriguez: that the trial judge had improperly precluded him from using a surveillance report to impeach a witness; that the judge’s final jury instructions were flawed in numerous respects; and that his sentence was excessive. 86 A.D.3d at 430 (A20-22). 6 After the Appellate Division denied his appeal, Lantigua was deported. Accordingly, he did not request leave to appeal to this Court. -6- Special Agents KEITH FLAHERTY, JAROD FORGET, DON WEUVE, ERIC WEIL, and MARLOW LUNA, New York State Police Senior Investigator HECTOR FERNANDEZ, Investigator GREGORY NAJAC, and Office of the Special Narcotics Prosecutor Supervising Investigator GEORGE ANNARELLA, employed a court-authorized wiretap and pen register for four cell phones used by suspected drug trafficker Carlos Loveras (Flaherty: 52, 110-12, 150 [R254, R312-14, R352]; Weuve: 249 [R451]; Fernandez: 604-05 [R719-20]; Weil: 643-44 [R743-44]; Luna: 862- 64 [R936-38]; Annarella: 920, 922-23 [R994, R996-97]; Najac: 945 [R1014]; Forget: 1161-62 [R1196-97]).7 Phone calls intercepted over the wiretap allowed the task force to identify some of the members of the drug trafficking organization run by Loveras. Defendants Miguel Mejias and Antonio Rodriguez both worked for Loveras, assisting him in 7 Most of the phone calls intercepted over the wiretap were in Spanish. From the over 1,000 calls, Spanish-speaking monitor JENNIFER MINAYA prepared English translations of 87 selected calls (Minaya: 343, 376-80, 408-10, 423-24, 438-43, 458, 461, 479- 82, 489-90 [R461, R494-98, R526-28, R541-42, R556-61, R576, R579, R597-600, R607-08]). Because many of the phone calls contained cryptic and coded language, Special Agent Flaherty, who had reviewed every call, was allowed to proffer his interpretation of those calls (Flaherty: 510-42, 554-603, 768-74, 792-861, 1007-41 [R625-57, R669-718, R853-59, R867- 935, R1055-89]). After hearing testimony about his experience in using wiretaps to investigate large-scale drug operations, the judge qualified Agent Flaherty as an expert in the operation of high-level narcotics traffickers and the interpretation of drug language over cell phones (Flaherty: 51-75 [R253-77]). The 87 phone calls described above, which were introduced at trial as People’s Exhibits one through 87, are included in the People’s Appendix. Parallel citations to Agent Flaherty’s testimony generally refer to his summarizing and analyzing the relevant phone conversations. -7- various ways to organize and carry out the importation, shipment, and receipt of cocaine (Flaherty: 521, 524-27, 534-35, 537, 539-41, 560-61, 569-72, 1009, 1019-20, 1097, 1101, 1106-07, 1130 [R636, R639-42, R649-50, R652, R654-56, R675-76, R684- 87, R1057, R1067-68, R1147, R1151, R1156-57, R1180]; People’s Exhibits 2-11, 14, 64, 68 [R6-25, R32-34, R185-87, R200-01]). Defendant Rodriguez also purchased cocaine from Loveras to sell to his own clientele. In one call, the men discussed at what price Loveras would sell cocaine to Rodriguez (Flaherty: 574-79, 1090-91 [R689- 94, R1140-41]; People’s Exhibits 15-16 [R35-39]). And, at another point, defendant Rodriguez told Loveras that Rodriguez’s customers were eager to obtain more cocaine, but that he did not want to accept money for the drugs until the incoming shipment of cocaine was close to arriving (Flaherty: 1012, 1103 [R1060, R1153]; People’s Exhibit 65 [R188-91]). Furthermore, calls revealed that codefendant Junior Lantigua was joining the organization as a truck driver and drug transporter (Flaherty: 770-73, 776, 793-99, 1069, 1117-18 [R855-58, R861, R868-74, R1117, R1167-68]; People’s Exhibits 31-37 [R76-96]). Armando Magallon, meanwhile, was already a truck driver for the organization, and he was responsible for transporting cocaine to New York (Flaherty: 583-84, 590-94, 596 [R698-99, R705-09, R711]; People’s Exhibits 17, 20-24 [R40-42, R49-61]). Finally, Loveras’s drug supplier was “Cuna,” who spoke to Loveras from a phone number with a Mexican area code. Loveras relied on Cuna and Cuna’s contacts in Mexico to obtain cocaine (Flaherty: 510, 513-16, 541, 834-37, 842-47, -8- 1015-19, 1065, 1094 [R625, R628-31, R656, R908-11, R916-21, R1063-67, R1113, R1144]; People’s Exhibits 1, 54, 57, 67 [R2-5, R148-52, R161-65, R196-99]). Defendant Mejias, defendant Rodriguez, and Loveras conduct a practice run of the planned drug delivery. Starting on May 10, 2008, phone calls intercepted over the wiretap revealed that Magallon was driving a tractor trailer to New York. Magallon told Loveras that he was coming “naked,” that is, without any cocaine; the purpose of the trip was for Magallon to familiarize himself with the route and location where he would eventually deliver the drugs (Flaherty: 583-84, 590-94 [R698-99, R705-09]; People’s Exhibits 17, 20-21 [R40-42, R49-53]). Loveras told Magallon over the phone about a stash house where the truck could be parked and he assured Magallon that the entire tractor trailer would fit. Loveras added that, if any changes had to be made, he would handle it (Flaherty: 592 [R707]; People’s Exhibit 20 [R49-51]). In a phone call the next day, Loveras reminded defendant Mejias that Magallon was en route to New York, and he confirmed with Mejias that the stash house was available to show Magallon (Flaherty: 586-87, 594-95 [R701-02, R709-10]; People’s Exhibits 19, 22 [R46-48, R54-56]). At approximately 11:00 a.m. on May 12, 2008, Magallon parked the tractor trailer in the parking lot of a Pathmark in the Bronx, near the intersection of Leland Avenue and the Bruckner Expressway Service Road (Flaherty: 580-81 [R695-96]; Fernandez: 608-09, 611 [R723-24, R726]; Weil: 663 [R764]). Loveras soon arrived in a station wagon and parked behind the tractor trailer, and Magallon got into Loveras’s -9- car (Fernandez: 610-12 [R725-27]; Forget: 1291-92 [R1232-33]). At around this time, Loveras phoned defendant Rodriguez and directed him to the Pathmark (Flaherty: 597-600 [R712-15]; People’s Exhibit 25 [R62-64]). Defendant Rodriguez soon arrived in an SUV, got out, and spoke to Loveras (Fernandez: 616, 618, 626 [R731, R733, R741]; Forget: 1277-78, 1291 [R1230-31, R1232]). Rodriguez then got back into his SUV and left (Fernandez: 619 [R734]). Magallon and Loveras also left together in the station wagon (Fernandez: 619 [R734]). At approximately this time, defendant Mejias phoned Loveras and told him that the owner of the stash house had to leave, and Loveras assured Mejias that they were on their way (Flaherty: 600-01 [R716-17]; People’s Exhibit 27 [R67-68]). Coordinates drawn from cell site information for Loveras’s phone established that he drove to a commercial area in Brooklyn with warehouses that were capable of accommodating tractor trailers (Weil: 651-53 [R751-53]). Later that afternoon, Loveras called defendant Mejias and asked for help obtaining cell phones for the truck driver Magallon (Flaherty: 601-02 [R716-17]; People’s Exhibits 28-29 [R69-73]). Roughly an hour later, members of the task force observed Loveras and Magallon enter a T-Mobile store in City Line, Brooklyn (Weil: 654, 657, 660, 696 [R754, 757, 760, 766]; Flaherty: 767 [R852]). When Loveras and Magallon eventually walked out of the store, defendant Mejias was with them (Weil: 657, 661, 681, 684 [R757, R761, R781, R784]). -10- Additionally, calls intercepted over the wiretap, coupled with various pieces of documentary evidence, established that codefendant Lantigua, at the behest of Loveras, took steps toward purchasing a tractor trailer (Flaherty: 770, 794 [R855, R869]). In that regard, on May 15, 2008, defendant Mejias assured Loveras over the phone that Lantigua had completed all the necessary paperwork to incorporate a trucking company (Flaherty: 771, 774, 776, 794 [R856, R859, R861, R869]; People’s Exhibits 31-32 [R76-80]). On May 20, 2008, surveillance at Arrow Truck Sales, a truck dealership in Elizabeth, New Jersey, showed that Loveras and Lantigua were shopping there together for the cab of a tractor trailer (Luna: 865, 870, 873, 910-11, 913-15 [R939, R944, R947, R984-85, R987-89]). The next day, May 21, 2008, Lantigua applied for financing on behalf of his newly-incorporated company to purchase a 2005 Volvo tractor trailer that cost $50,435 (Flaherty: 788-92, 1069 [R863- 67, R1117]). Lantigua’s application for financing was denied that same day (Flaherty: 788-92, 1069 [R863-67, R1117]). Lantigua immediately notified Loveras and urged him to buy the truck outright (Flaherty: 817, 819 [R891, R893]; People’s Exhibits 42-43 [R116- 20]). Loveras told Lantigua that he had to receive permission to make the purchase from “over there,” in other words, from his partners in Mexico (Flaherty: 817-18, 825 [R891-92, R899]; People’s Exhibits 42-44, 47 [R116-24, R129-30]). When Lantigua warned Loveras at one point about the risk of purchasing a defective truck, Loveras responded that it was “their problem,” since “[t]hey” provided the money, and -11- Loveras simply did “what they t[old]” him to do (Flaherty: 851 [R925]; People’s Exhibit 59 [R168-73]). After Lantigua was denied financing, defendant Mejias recommended to Loveras that they instead use Mejias’s friend in New Jersey, Victor Luna-Martinez, to purchase a truck and serve as their driver (Flaherty: 832-33 [R906- 07]). Thus, Mejias set up a meeting for the next day between Loveras and Luna (People’s Exhibit 53 [R146-47]). A few days later, Mejias sought reimbursement from Loveras for the cost of a truck-driving school (Flaherty: 856, 858, 1051 [R930, R932, R1099]; People’s Exhibit 60 [R174-76]). Defendant Mejias and Lantigua wire money to Mexico and Costa Rica. Cocaine is often produced in South America and smuggled through Central America into Mexico en route to the United States (Flaherty: 78, 84, 803 [R280, R286, R878]). Drug smugglers have to be paid for their services, which ensures that the cocaine is “release[d]” from stash houses and continues its movement north (Flaherty: 86, 96, 98-99, 803 [R288, R298, R300-01, R878]). To that end, on May 20, 2008, Cuna instructed Loveras to wire money to Costa Rica (Flaherty: 803 [R878]; People’s Exhibit 39 [R101-08]). Then, on May 22 and 23, 2008, Lantigua sent a pair of $1,000 money wire transfers to San Jose and Curridabat, Costa Rica (Western Union Senior Information Security Analyst STACEY ANDERSON: 727, 729-30, 732-33 [R817, R819-20, R822-23]; Flaherty: 1063 [R1111]). In phone calls on May 22 and 24, 2008, Lantigua told Loveras that if he wanted him to send additional money, it would have to be in amounts under $1,000. Lantigua complained that they “got hot” for wire -12- transfers of $1,000 or more, referring to the fact that federal law requires a sender to provide identification for all wire transactions of $1,000 or more (Anderson: 709, 736 [R799, R826]; Flaherty: 826-30, 1125-26 [R900-04, R1175-76]; People’s Exhibits 49, 51 [R133-36, R139-42]). Defendant Mejias subsequently wired money abroad as well. On May 28, 2008, Loveras put Mejias on the phone with Cuna, who instructed Mejias to wire money to Mexico. Cuna provided Mejias with the requisite information to complete the wire, including the name of the payee: “Armandor Adolfo Barraza Becerra” (Flaherty: 837- 39 [R911-13]; People’s Exhibit 55 [R153-57]). That same afternoon, a sender who identified himself as “Rafi Santos” wired $2,000 from Ozone Park, Queens, to Guadalajara, Mexico (Anderson: 712, 714-15, 722 [R802, R804-05, R812]). The payee was listed as “Armandor Adolfo Baccara Vecerra” (Anderson: 719 [R809]). Defendant Mejias, defendant Rodriguez, and Loveras prepare for the arrival of the drug-filled tractor trailer. In the meantime, Cuna was providing Loveras with repeated updates about the status of the incoming cocaine shipment. This included that, on May 28, 2008, the drugs had reached California (Flaherty: 842 [R916]; People’s Exhibit 57 [R161-65]), and that, on June 6th, the drugs had left California the previous day (Flaherty: 1020- 21, 1023 [R1068-69, R1071]; People’s Exhibit 69 [R202-05]). Cuna instructed Loveras to have his guys “together,” “[m]otivate[d],” and “ready” (Flaherty: 1023, 1028 [R1071, R1076]; People’s Exhibits 69-70 [R202-11]). During this same period of time, -13- defendant Rodriguez asked Loveras for updates regarding the date of the drug delivery (Flaherty: 1014, 1107 [R1062, R1157]; People’s Exhibits 66, 71 [R192-95, R212-13]). Just like Cuna had told him, Loveras advised Rodriguez to be prepared (Flaherty: 1028-29, 1107, 1131 [R1076-77, R1157, R1181]; People’s Exhibit 71 [R212- 13]).8 On June 9, 2008, Loveras phoned defendant Mejias, asked him if he was “ready,” and instructed him to come over (People’s Exhibit 72 [R214-15]). Suspecting that the cocaine would be arriving soon, members of the task force, using the cell site coordinates for Loveras’s phone, conducted surveillance of a residential house at 152 Prospect Street in Englewood, New Jersey (Flaherty: 1029-30, 1228-29 [R1077-78, R1178-79]; Luna: 876-78, 890 [R950-52, R964]). Defendant Mejias, Loveras, and Victor Luna-Martinez were in the back of the house drinking and grilling food (Luna: 878 [R952]). Loveras, assisted by Mejias, then began cutting wood from, and dismantling, the rear deck (Luna: 878-79 [R952-53]). The next day, Loveras phoned defendant Rodriguez and gave him directions to a dry cleaning shop in Englewood, which was only a short distance from 152 Prospect Street (Flaherty: 1031 [R1079]; Forget: 1231-33 [R1225-27]). In a phone call that same day, Loveras notified Cuna that he was “getting the place ready” so that the 8 The expected delivery date was initially at some point in late May, but was repeatedly delayed to June 5th, June 9th, and finally June 12th (Flaherty: 837, 843-44, 1014, 1018, 1027, 1131 [R911, R917-18, R1062, R1066, R1075, R1181]; People’s Exhibits 54, 57, 66-67, 70 [R148-52, R161-65, R192-99, R206-11]). -14- tractor trailer would “fit” (Flaherty: 1032 [R1080]; People’s Exhibit 77 [R224-26]). Loveras elaborated further in a phone call the following day, telling Cuna that he gave the driveway “the last touch yesterday because [he] saw a door that looked to [him] sort of narrow, so [he] gave it two more feet” (People’s Exhibit 79 [R229-31]). The cocaine-filled tractor trailer arrives but will not fit in Luna’s driveway. Defendant Mejias guards the trailer while Loveras works with defendant Rodriguez to find an alternative stash house. On June 11, 2008, using GPS information from Magallon’s cell phone, members of the task force followed the tractor trailer to a rest area off Route 95 in Connecticut (Forget: 1164-71, 1174 [R1199-1206, 1209]; Weil: 662-63 [R762-63]). Loveras notified defendant Rodriguez by phone that the truck would arrive the next day (Flaherty: 1035, 1132 [R1083, R1182]; People’s Exhibit 81 [R234-35]). Thus, starting at 6:00 a.m. on June 12, 2008, numerous members of the task force staked out the area around the Pathmark parking lot in the Bronx. In Englewood, New Jersey, Task Force Officer ANTHONY FASOLAS conducted surveillance of Luna’s house (Luna: 881, 896, 904 [R955, R970, R978]; Annarella: 924, 926 [R998, R1000]; Najac: 948-49 [R1017-18]; Forget: 1175 [R1210]). At roughly 8:00 a.m., Magallon pulled the tractor trailer into the Pathmark parking lot (Luna: 882 [R956]; Annarella: 927-28 [R1001-02]; Najac: 954 [R1023]; Forget: 1174 [R1209]). About 45 minutes later, Loveras and defendant Mejias arrived in Loveras’s station wagon, parking “directly behind” the tractor trailer (Luna: 882, 889 [R956, R963]; Annarella: 928 [R1002]; Najac: 957 [R1026]). They got out of the -15- car and spoke to Magallon, and then Loveras and Magallon left together in the station wagon (Luna: 883 [R957]; Annarella: 928-29 [R1002-03]; Najac: 957 [R1026]). Defendant Mejias stayed behind, “pacing” alongside the tractor trailer and looking around (Luna: 883 [R957]; Annarella: 929-30 [R1003-04]). He also walked up and down the street and glanced into parked cars (Luna: 883 [R957]). Agents Luna and Forget, as well as Investigator Najac, were all in separate vehicles parked in the vicinity of the tractor trailer. Due to Mejias’s “counter surveillance,” they hid in their back seats behind the rear tinted windows (Luna: 883-84, 904 [R957-58, R978]; Najac: 951, 958, 960-62, 967 [R1020, R1027, R1029-31, R1036]; Forget: 1178-79 [R1213-14]). Mejias used a key at one point to enter the passenger side of the tractor trailer’s cab, and he got out a few minutes later and locked the door (Annarella: 930 [R1004]). In the meantime, Loveras and Magallon arrived at Luna’s house in Englewood (Fasolas: 1140-41 [R1187-88]). They walked up and down the driveway, “assessing” different areas and speaking to one another (Fasolas: 1142 [R1189]). At one point, Loveras knocked on the front door and stood there for a couple of minutes (Fasolas: 1142, 1144 [R1189, R1191]). Loveras called defendant Mejias and complained that Luna was not opening the door; Mejias advised him that Luna was inside the house and to “scream at him” (Flaherty: 1036-37 [R1084-85]). Loveras and Magallon then continued examining the driveway, and Luna soon came outside and joined them (Fasolas: 1144 [R1191]). Using a measuring tape, Loveras and Luna measured the length and width of the driveway (Fasolas: 1144 [R1191]). The men also assessed the -16- relationship of the street to the driveway, pointing to a nearby telephone pole in the street (Fasolas: 1144-45 [R1191-92]). Loveras and Magallon then got back into the station wagon and drove toward the George Washington Bridge (Fasolas: 1146, 1148 [R1193, R1195]). In a call to defendant Rodriguez at approximately this time, Loveras said that he had a “problem right now”: “the house that we were going to use is narrow . . . How can we find something urgently?” (Flaherty: 1037 [R1085]; People’s Exhibit 84 [R240-41]). Exclaiming “Oh my god!” and “dear God!”, defendant Rodriguez assured Loveras that he would try to find an alternative location (People’s Exhibit 84 [R240-41]). Loveras and Magallon returned to the Pathmark and parked behind the tractor trailer (Luna: 884 [R958]). They spoke to defendant Mejias, pointed toward the top of the trailer, and used an instrument to measure it (Luna: 884-85 [R958-59]). Loveras and Magallon then left for a second time, and Mejias again stayed behind near the tractor trailer (Luna: 885-86 [R959-60]; Annarella: 931 [R1005]). Loveras and Magallon returned to the Pathmark an hour later (Luna: 886 [R960]). At around this time, defendant Rodriguez spoke to Loveras on the phone: Rodriguez said that he had called a “friend” about a “place in New Jersey,” and was awaiting a call back. Loveras instructed Rodriguez to come to the “supermarket” so that they could “truly talk” (Flaherty: 1038 [R1086]; People’s Exhibit 85 [R242-44]). Defendant Rodriguez soon arrived at the Pathmark in a Jeep (Luna: 886, 889 [R960, R963]; Annarella: 932 [R1006]). The men continued measuring the trailer and -17- pacing for the next 40 minutes (Luna: 886-87 [R960-61]). Loveras and Rodriguez left together at one point and returned at approximately 1:30 p.m. (Luna: 887-88 [R961- 62]; Annarella: 932 [R1006]). Defendant Mejias, defendant Rodriguez, and their cohorts are arrested next to the tractor trailer, which contains 400 pounds of cocaine worth $14 million. At approximately 2:00 p.m., group supervisor Raymond Donovan issued a radio transmission for his team to arrest the suspects (Flaherty: 122, 138, 600, 1109 [R324, R340, R715, R1159]; Weil: 663 [R763]; Luna: 888 [R962]; Annarella: 932-33 [R1006-07]; Najac: 956, 964 [R1025, R1033]; Forget: 1183 [R1218]). Officers arrested defendant Mejias, Magallon, and Loveras on the sidewalk a few feet away from the tractor trailer (Flaherty: 126-27, 497, 580, 582, 1042 [R328-29, R612, R695, R697, R1090]; Forget: 1183 [R1218]). Defendant Rodriguez was arrested as he was getting out of his Jeep parked nearby (Flaherty: 127-28, 143, 145, 497, 580, 1042 [R329-30, R345, R347, R612, R695, R1090]; Weuve: 665 [R765]; Luna: 905 [R979]; Annarella: 933, 939-40 [R1007, R1008-09]; Forget: 1183-84 [R1218-19]). Officers also arrested Luna at his home in New Jersey (Flaherty: 131-32, 758 [R333-34, R843]; Weuve: 259- 60, 267, 282-83 [R455-56, R457, R458-59]). The team arrested Lantigua three weeks later pursuant to an arrest warrant (Flaherty: 131-32, 497-98, 1059 [R333-34, R612-13, R1107]; Weuve: 677-78, 704-05 [R777-78, R797-98]). After the initial arrests on June 12, 2008, the team seized the tractor trailer and transported it to a DEA parking lot, where a five-hour search initially yielded no drugs -18- (Flaherty: 134, 217-18, 1006 [R336, R420-21, R1054]). A “radiation scan” revealed a foreign substance secreted inside part of the trailer’s frame (Flaherty: 219-20 [R422- 23]). By sawing open the trailer at those spots, the task force discovered 91 two- kilogram packages of almost 80-percent pure cocaine (Flaherty: 220-29, 235 [R423-32, R438]; Forensic Chemist DAVID THORNELL: 976-77, 983 [R1045-46, R1047]). The cocaine had a net weight of 180 kilograms, or almost 400 pounds, which, at street level, was worth as much as $14 million (Flaherty: 95-97, 245-46 [R297-99, R448-49]). The task force seized a number of additional items from the suspects and their vehicles. This included three cell phones from defendant Mejias, a cell phone and $1,331 in cash from defendant Rodriguez (Weuve: 672 [R772]; Flaherty: 1088, 1185 [R1138, R1220]), and three more cell phones from Rodriguez’s Jeep (Weuve: 256 [R452]; Flaherty: 754 [R839]). Two cell phones were recovered from Loveras. One of those phones was for the number that was being wiretapped, and it had “Cunao” written on it in permanent marker (Weuve: 667 [R767]; Flaherty: 745-46 [R830-31]). The task force recovered several additional items from Loveras’s station wagon, including another cell phone, $10,000 in cash (Flaherty: 193-94, 214-15, 751 [R396-97, R417-18, R836]; Forget: 1262 [R1229]), and billing records for the truck driving school attended by Luna (Flaherty: 193-94, 751 [R396-97, R836]). From defendant Rodriguez’s Jeep, the team recovered a receipt for the $2,000 that defendant Mejias wired to Mexico; the phone number of the sender on the receipt -19- matched the number that Mejias used to call Loveras’s wiretapped phone (Flaherty: 212-14 [R415-17]; People’s Exhibit 117 [receipt]). That same day, the task force executed a search warrant in defendant Mejias’s home at 94-56 Plattwood Avenue in Queens (Forget: 1185-86, 1188 [R1220-21, R1223]). Officers seized three more cell phones, a scale with cocaine residue, and a money counter (Thornell: 985-87 [R1049-51]; People’s Exhibits 240-42 [cell phones], 211 [scale], 244 [money counter]). The task force also recovered insurance and registration documents for Loveras’s station wagon, and registration documents and license plates for defendant Rodriguez’s Jeep (People’s Exhibits 226, 164, 164A [vehicular records]). Further, the team seized a handwritten list of expenses for Lantigua’s newly-formed trucking company (People’s Exhibits 165, 165A [list of expenses, translation]). Minaya listened at least twice to every phone call intercepted over the wiretap, and more than two times to any conversation that seemed pertinent to the investigation (Minaya: 377-80, 479-80 [R495-98, R597-98]). Using unmarked voice exemplars, Minaya identified the voices of the various conspirators, including defendants Mejias and Rodriguez (Minaya: 382, 387-89, 391, 396, 400-01, 404 [R500, R505-07, R509, R514, R518-19, R522]). -20- Defendants’ Cases Rodriguez’s Case By stipulation, defendant Rodriguez introduced into evidence his Puerto Rican birth certificate (Defense Exhibit E). Mejias’s Case Defendant Mejias presented no evidence at trial. POINT I THE TRIAL JUDGE ACTED WITHIN HER DISCRETION IN RESPONDING TO A JUROR’S REQUEST TO HEAR ADDITIONAL TESTIMONY ABOUT A PARTICULAR TOPIC (Answering Mejias’s Brief, Point I; Rodriguez’s Brief, Point I). At trial, moments after the parties rested, a juror handed Justice Wittner a note asking to hear testimony about how codefendant Lantigua met defendant Mejias. After consulting with the parties, the judge brought the note to the attention of the jury panel, confirmed that none of the jurors had been discussing the case, and explained that the law did not allow jurors to ask such questions about the evidence. On direct appeal, defendants both argued that the note suggested that jurors had prematurely deliberated, and they complained about the manner in which the judge decided to respond. In rejecting these claims, the Appellate Division held that there was no reason to believe that the jurors engaged in premature deliberation, that the -21- trial court appropriately exercised its discretion by addressing the jury as a whole and delivering “careful” instructions, and that the court’s response was sufficient to avoid any possible prejudice (A21). Before this Court, defendants mostly repeat the same arguments that the Appellate Division rejected. As demonstrated below, defendants’ claims are partially unpreserved for this Court’s review. Defendants’ arguments are also meritless, and no basis exists to disturb the jury’s verdict. The Relevant Record After the parties rested, but before the start of summations, the jurors were given an opportunity to examine some defense exhibits in the jury box (1331 [A214]). As this was occurring, the judge admonished the jurors “not to talk among yourselves,” and she reminded them that there was to be no discussion of the case until they began to deliberate (id.). Also while this was happening, a juror handed a note to a court officer, who in turn gave it to the judge (id.).9 After sending the jurors to lunch, Justice Wittner read aloud the note, which was addressed to her: “We want to know how/when and under what pretext Junior [codefendant Lantigua] met Miguel Mejias” (1332 [A215]). Since she had instructed the jurors from the start of trial that they could base their verdict only on evidence that was introduced by the parties and reasonable inferences drawn therefrom, Justice Wittner initially concluded 9 Juror ten handed the note to the court officer. The judge and the parties were initially under the impression that juror ten had written the note, but later realized that it was actually juror eleven who was the note’s author. Upon learning this fact, the judge stated that it “didn’t really matter” (1405C [A225]). -22- that she did not have to respond to the note (id.; see Preliminary Jury Charge at 8-12 [A30-34]). The judge added that the note was “not very well written,” since the juror apparently misused the term “under what pretext” (1333 [A216]). Counsel for Mejias and Rodriguez urged that the use of “we” in the note suggested that multiple jurors had been deliberating about the evidence in “clear defiance” of the judge’s instructions. Both defense lawyers thus requested that the judge individually question the juror who wrote the note (1333 [A216], 1336-38 [A219-21]). Alternatively, Mejias’s attorney moved for the juror to be disqualified (1338 [A221]). The People simply urged the judge to address the entire jury panel and repeat her limiting instructions about not discussing the case or forming opinions until deliberations commenced (1337 [A220]). The judge decided that the juror’s use of the word “we” could have been an awkward way of the juror expressing herself, and that it was unreasonable to “jump” to conclusions by “assuming all of these facts from the one note” (1333 [A216], 1338 [A221]). The judge did not want to “isolate jurors,” and thus to engender a repeat of “what happened before” to a discharged juror with an offensive body odor (1337-38 [A220-21]).10 Thus, she decided to speak to the jury panel as a whole (id.). 10 In that incident, which is revisited later in the text, the jury foreperson requested to speak with the court in camera, explaining that another juror possessed an unpleasant body odor that had become a distraction to him and a number of other jurors. The judge then interviewed three additional jurors, two of whom confirmed that the smell was impairing their ability to concentrate on the testimony. The judge spoke twice to the malodorous (Continued…) -23- Upon the jury’s return to the courtroom, Justice Wittner reminded the jurors that, as she had admonished them throughout trial, they should not discuss the case among themselves or with anyone else until she charged them on the law (1339 [A222]). Justice Wittner stated that she had been handed a note, and told the jurors that, despite the note referring to “we,” she was assuming that the jurors had been following her instructions by not discussing the case (id.). The judge then asked any jurors who had talked about the case to raise their hands. There was “no response” (1339 [A222], 1341 [A224]). Finally, the judge instructed the jurors that, under New York law, jurors do not have an opportunity to ask questions, that they were prohibited from speculating about evidence not in the record, and that, once they heard the law, they could begin deliberating (1339-40 [A222-23]). Preservation Before the trial court, defendants complained only that the juror’s use of the word “we” in the note suggested that multiple jurors had been prematurely deliberating about the evidence, and asked the judge to interrogate individually the author of the note. Before this Court, though, defendants raise several new complaints that were never presented to the trial judge. First, defendant Rodriguez ______________________ (…Continued) juror, drawing her attention to the other jurors’ complaints about her smell. Upon learning this fact, the juror became so embarrassed that she was unable to remain on the case (312-38 [A80-107]); see Brief for Rodriguez at 26-27; see also People’s Appellate Division Brief, Point III). -24- claims that, because one juror handed the note to the court and a different juror wrote the note, those two jurors necessarily deliberated prematurely about the case. And he now insists that the trial judge was thus required to conduct individual inquiries of both jurors. Moreover, defendants argue that the use of the word “pretext” in the note signaled that jurors had already drawn definite conclusions about one aspect of the evidence — namely, that defendants and their accomplices utilized deception in conspiring to traffic in cocaine. However, defendants did not advance these arguments before the trial judge, rendering them unpreserved for this Court’s review. In the first place, Rodriguez never asserted at the trial level that, because one juror wrote the note and a different juror handed it to the court, “at least” those two jurors engaged in premature deliberation (Brief for Rodriguez at 22, 24). And he never asked that the judge interview the note-passer in addition to the note’s author. As previously stated, the judge initially believed that juror ten authored the note, but she corrected herself and announced that, although juror ten had given the note to the court, juror eleven had actually written it. The judge added that this fact “doesn’t really matter” (1405C [A225]). None of the defendants contradicted the judge on this score, nor in any other way called the court’s attention to the supposed import that Rodriguez attributes to this detail on appeal. Because Rodriguez not only failed to propound this element of his current argument before the trial judge, but also stood mute when the judge stated that she viewed this fact as meaningless, Rodriguez did not preserve this aspect of his claim for review. CPL 470.05(2); see generally People -25- v. De Jesus, 69 N.Y.2d 855, 857 (1987) (a party’s “failure to raise his present contentions left no opportunity for the Trial Judge to consider these matters”). Second, while defendants now read a nefarious meaning into the use of the word “pretext” in the note (see Brief for Mejias at 24-25; Brief for Rodriguez at 3, 22) — urging that its author must have already viewed defendants as deceptive and drawn premature conclusions about particular aspects of the evidence — no defendant ever once intimated to the trial court a belief that this word had such expansive and ominous implications. In fact, when Justice Wittner stated that she viewed the phrase “under what pretext” as simply reflective of poor word choice in inquiring about the context of, or the purported reason for, the meeting (1333 [A216]), defendants neither disagreed with the judge nor voiced any semblance of concern that “pretext” had the import that they now claim. This is an important omission. Defendants, after all, now rely on this detail in claiming that the judge should have known that juror misconduct had supposedly occurred, that the judge lacked discretion to do anything but individually interrogate the note’s author, and that defendants suffered prejudice. But the trial judge was given no reason to believe that defendants viewed this aspect of the note in the fashion that they now allege on appeal. Simply put, for defendants to preserve their argument that “pretext” carried the sweeping implications that they now claim — and not the innocent meaning that the judge believed and expressly conveyed to the parties — they had to articulate this position with “sufficient specificity” so that the trial court -26- could “consider and deal” with it. People v. Robinson, 88 N.Y.2d 1001, 1002 (1996). Having failed to do so, defendants are now precluded from raising this newfound complaint before this Court. See CPL 470.05(2). Analysis Putting aside preservation, defendants’ complaints are devoid of merit. The juror’s note was an innocuous request to hear more evidence about a particular issue, and, under the circumstances of this case, the judge appropriately exercised her discretion by collectively questioning the jurors and confirming that they had not been improperly deliberating on the case. Nothing about this incident therefore demands now overturning defendants’ convictions. The law on the subject of alleged midtrial juror misconduct is clear. A sworn juror must be discharged if she engages in “misconduct of a substantial nature” during trial, or if she otherwise becomes “grossly unqualified” to serve on the case based on facts unknown at the time of jury selection. CPL 270.35(1). A juror is deemed to be grossly unqualified “only when it becomes obvious that [the] particular juror possesses a state of mind which would prevent the rendering of an impartial verdict.” People v. Buford, 69 N.Y.2d 290, 298 (1987). Thus, jurors have been found grossly unqualified where it was discovered during trial that a juror had relations with a witness of a business or intimate nature, or had an actual bias against a witness. Guilty verdicts have also been set aside where a juror performed a “test” to determine the plausibility of a witness’ testimony, or reenacted the crime. See Buford, 69 N.Y.2d -27- at 298 (citations omitted). Conversely, a sworn juror should not be excused merely because she “disagrees with the way the evidence is presented,” or even if a juror becomes “irritated” with an attorney for one of the parties. Id. at 298-99 (citations omitted). A trial judge should be “circumspect” about removing a seated juror. People v. Daniels, 218 A.D.2d 589, 591 (1st Dep’t 1995). If there is a credible reason to believe that a juror has engaged in misconduct or might be grossly unqualified, the decision whether to replace the juror must be made on a case-by-case basis after a “probing and tactful inquiry.” Buford, 69 N.Y.2d at 299. But, because arguable juror misconduct can take many forms, each case must be evaluated on its “own unique facts.” People v. Clark, 81 N.Y.2d 913, 914 (1993); see Buford, 69 N.Y.2d at 299. As a result, the decision about how to investigate allegations of juror misconduct is entrusted to the sound discretion of the trial court. And, because a trial court is in the best position to evaluate a juror’s ability to serve, that court is “accorded latitude in making the findings necessary” to justify a juror’s removal. People v. Rodriguez, 71 N.Y.2d 214, 219 (1988). Even if juror misconduct is shown, not every misstep by a juror rises to the level of requiring reversal. Indeed, a defendant must still show that the purported misconduct prejudiced him in order to be entitled to a new trial. See People v. Irizarry, 83 N.Y.2d 557, 561 (1994); Clark, 81 N.Y.2d at 914-15. Moreover, a defendant must allege facts in order to meet this burden — an assertion of prejudice -28- that is “merely speculative” is insufficient. Irizarry, 83 N.Y.2d at 561-62. Ultimately, as with the choice of how to investigate allegations that might potentially require juror disqualification, the decision whether to discharge a sworn juror is within the trial court’s sound discretion. See, e.g., People v. Triplett, 305 A.D.2d 230, 231 (1st Dep’t 2003); People v. Torres, 248 A.D.2d 167, 168 (1st Dep’t 1998). In light of these standards, the judge here responded appropriately to the juror’s note, and there is no basis for disturbing the jury’s verdict. First, despite defendants’ unpreserved complaints to the contrary (Brief for Mejias at 16-17, 24-25; Brief for Rodriguez at 22, 26), it is of no moment that juror eleven used the word “pretext” in her note. As previously stated, the judge considered this indicative of semantic confusion, and, tellingly, not one of the three defendants who stood trial disagreed with that conclusion. Nor would the use of this word, even if purposeful, support such unbridled and far-reaching speculation about the juror’s overall view of the evidence. The note merely requested evidence about how Lantigua and Mejias were connected to one another in this case. At most, the juror’s use of “pretext” evinced nothing more than an understanding that the People’s evidence alleged that pretext was the undergirding of the interactions between the coconspirators — in other words, that juror eleven grasped the thrust of the People’s case and the basic framework of the proof that had been presented. Merely because, to be technically accurate, juror eleven should have written “alleged” before “pretext” certainly does not, in and of itself, reflect the juror’s -29- wholesale adoption of the People’s theory of guilt. See generally People v. Rivera, 262 A.D.2d 235, 235-36 (1st Dep’t 1999) (juror’s note on last day of trial that he wanted to finish “today” did not support speculation that jurors engaged in premature deliberation or were predisposed toward finding guilt); People v. Rodriguez, 194 A.D.2d 304 (1st Dep’t 1993) (jurors’ questions as to what additional witnesses might be called and whether interpreter’s translations were accurate did not support inference of premature deliberation). In fact, as a whole, the juror’s note was little more than a lay request to hear evidence about a specific issue not covered in the parties’ evidence. This fact is exemplified by the context in which the note was passed up to the court. The parties had rested only moments earlier at the end of a relatively long trial. And although legally misguided, the juror who wrote the note was making a reasonable and attentive request to hear additional testimony about how codefendant Lantigua met defendant Mejias. A thoughtful juror, having listened to numerous witnesses and knowing that she would soon be called upon to resolve the case, might naturally contemplate a factual question of this kind that was not directly addressed by the trial evidence. Consequently, New York’s intermediate appellate courts have found no automatic error simply because such thoughts are put into words and communicated to the court. Indeed, even when an inquiry makes clear that several jurors have discussed such an issue together, if the question posed involves neither a “sifting of facts” nor a consideration of “outside influences,” this will not support an inference -30- that jurors have prematurely deliberated. People v. Qiang Zheng, 267 A.D.2d 257, 258 (2d Dep’t 1999); see id. (jurors’ pre-summation request for definition of slang term used in witness’ testimony did not suggest premature deliberation, and court did not err in declining to question jury); Rodriguez, 194 A.D.2d at 304 (jurors’ speculation as to what additional witnesses might be called, and whether interpreter’s translation was accurate, did not support inference that jurors engaged in premature deliberation); People v. Gonzalez, 155 A.D.2d 310 (1st Dep’t 1989) (even though pre- deliberation question indicated discussion among jurors regarding a particular exhibit, “there was no evidence of prior jury discussions or discussions relating to anything beyond that piece of evidence,” and the question did not signal premature deliberation or outside influences); see also People v. Silvagnoli, 251 A.D.2d 76, 77 (1st Dep’t 1998) (even jury foreperson’s pre-deliberation statement that member or members of jury “had some questions regarding ‘the law’ did not indicate premature deliberations or sifting of the facts to determine guilt or innocence”). Thus, even if the use of the word “we” in the note indicated that jurors other than juror eleven had also voiced their desire for additional evidence regarding codefendant Lantigua and defendant Mejias (see Brief for Mejias at 16-17; Brief for Rodriguez at 22), it still would not evince premature deliberation or establish substantial juror misconduct. Here, however, there was no such indication that multiple jurors had discussed the issue of how defendant Mejias and codefendant Lantigua came to meet. The mere fact that juror ten handed the note to the court officer, but juror eleven -31- authored the note, did not “ma[k]e it clear” that “at least” those two jurors had prematurely deliberated (Brief for Rodriguez at 22, 24). This fact easily could have signified only that juror ten was simply physically closer to the court officer and so better able to hand over the note. The lack of any appearance of inappropriate discussion between the jurors was evidenced by the fact that, when the judge expressly concluded that it “d[id]n’t really matter” that a juror other than the author handled the note, not one defendant contradicted the judge on this score. But, even if this detail suggested that there was some fleeting discussion between these two jurors while in the jury box, such comments clearly “were not lengthy discussions but merely terse asides.” People v. Roman, 182 A.D.2d 519, 520 (1st Dep’t 1992) (involving comment by one juror to another juror questioning accuracy of a translation). And as noted above, not every pre-deliberation communication among jurors supports an inference of untoward conduct requiring any judicial inquiry. See, e.g., People v. Qiang Zheng, supra (judge did not err in refusing to question jury at all). Here, as addressed below, the judge not only questioned the jurors about whether there had been any improper discussion of the case, but also issued additional instructions reminding the jurors of their duty not to deliberate prematurely. Justice Wittner also had good reason to doubt that the jurors had been improperly deliberating. Indeed, the only inkling of support for defendants’ speculation that the jurors discussed the case at all is that the judge admonished the jurors in the box for speaking aloud to one another (1331 [A214]). There is no -32- indication, however, that the jurors were in fact discussing the evidence at that point, and the absence of any complaints from the three trial defense attorneys supports the conclusion that no substantive jury discussion had occurred. If anything, it was likely that the jurors were simply not behaving as decorously as Justice Wittner would have preferred. Accordingly, a sound basis exists to conclude that the jurors, who were “presumed to follow the legal instructions they [we]re given” (People v. Baker, 14 N.Y.3d 266, 273-74 [2010]), heeded the judge’s instructions, made at every point of trial, not to discuss the case or draw premature conclusions about defendants’ guilt (11, 119, 307, 425, 542, 642, 777, 848, 918, 942, 989, 1042-43, 1084, 1244 [R251, R321, R460, R543, R657, R742, R862, R922, R992, R1011, R1053, R1090-91, R1134, R1228]). In any event, the manner in which Justice Wittner handled the note was appropriate and dispelled any suspicion of misconduct. As just stated, the jurors were presumed to have followed the judge’s antecedent instructions not to discuss the case (Baker, 14 N.Y.3d 273-74), and Justice Wittner was therefore correct, in the first instance, in “assum[ing]” that the jurors had in fact complied with her directions (1339 [A222]). Moreover, as demonstrated above, nothing about the content of the note reflected that its author was grossly unqualified or that jurors had prematurely deliberated, and so the judge would have been within her rights not to inquire at all of any jurors. See Qiang Zheng, 267 A.D.2d at 258. In an excess of caution, the judge nonetheless brought the note to the jurors’ attention, reminded them of their -33- obligation not to discuss the case before deliberations, and asked any jurors who had discussed the case to raise their hands. The jurors’ subsequent lack of raised hands confirmed that, in fact, none of them had spoken about the case. Thus, the judge did more than what the law required under these circumstances, and her point blank questioning — combined with the jurors’ response — substantiated the fact that the note was of no import to the jurors’ ability to deliberate. Put differently, the judge’s course of action extinguished any concern of actual juror misconduct, obviating the supposed need for an in camera inquiry of the note’s author. See People v. Matiash, 197 A.D.2d 794, 795-96 (3d Dep’t 1993) (upon court questioning third party, and it “thus appearing from the nature of the conversation that the jurors’ misconduct was essentially innocuous, we see no abuse of discretion, under these circumstances, in County Court’s decision not to interrogate the two jurors individually”). Importantly, at trial, none of the defendants suggested that the jurors were untruthful in responding that they had not improperly discussed the case, or that the manner in which the judge chose to handle this situation was flawed (see Brief for Mejias at 21; Brief for Rodriguez at 3-4). This was clearly because nothing in the court’s exchange with the jurors supported such a conclusion. This Court, then, is presented with unpreserved and wholly speculative complaints by defendants in this regard. And because the veracity of the jurors’ response to the judge’s questioning involved a credibility determination, this Court is bound to defer to Justice Wittner’s -34- tacit conclusion that the jurors were forthright. See generally People v. Guay, 18 N.Y.3d 16, 22 (2011). Justice Wittner’s credibility determination could only have been strengthened by her knowledge that the jurors at this particular trial would not have been too timid to bring any premature deliberation to the court’s attention. This was evidenced by the earlier incident, as described, involving an odiferous juror whom the judge had to replace (312-38 [A80-107]; see Brief for Rodriguez at 26-27). As the record of that prior episode demonstrated, the jurors were not unwilling to bring even uncomfortable matters to the court’s attention, and they spoke candidly when interviewed by the court about that issue. Consequently, even if defendants were correct in their speculation that perhaps all of the jurors were too shy to raise their hands in open court (see Brief for Mejias at 21; Brief for Rodriguez at 3-4), juror eleven’s unsolicited note, coupled with the foreman’s earlier notification of the judge regarding the juror’s body odor, made clear that these jurors would have figured out some method of alerting the judge to any misconduct, had it occurred. Of course, that prior incident also highlighted why isolating a juror could be problematic for the jury process, thereby underscoring the reasonableness of the judge’s choice of how to handle the jury note issue (compare Brief at Mejias at 21; Brief for Rodriguez at ii, 26). Upon the judge informing the malodorous juror that other jurors had complained of her smell, the juror became so distraught and alienated that she could not remain on the case. In that situation, of course, the judge had no -35- choice but to isolate the juror because she was actually, if inadvertently, preventing her fellow jurors from paying attention to the trial testimony, thus jeopardizing defendants’ right to a fair trial. In contrast, juror eleven’s note indicated, at most, a desire for additional evidence that was not forthcoming, and it was indicative of neither misconduct nor premature deliberation. Unlike in the earlier episode, there was simply no need for the court to signal that juror eleven had engaged in malfeasance by singling her out for an in camera inquiry, thereby threatening to embarrass the juror and affect her ability to deliberate. Under these circumstances, Justice Wittner did nothing wrong by addressing the jurors as a whole, stating that they were presumed to have followed her instructions not to discuss the case, and confirming that they had complied with these directions through a show of hands. For all of the reasons described, Justice Wittner — no less than the judges in the cases cited below — reasonably exercised her discretion by questioning the jury as a group. See People v. Brown, 52 A.D.3d 248, 248-49 (1st Dep’t 2008) (“The court properly exercised its discretion in questioning the jurors as a group, rather than individually, about whether any of them had engaged in premature deliberations”); People v. Cosby, 271 A.D.2d 353, 354 (1st Dep’t 2000) (in upholding trial court’s refusal to conduct individual questioning, stating that the “court’s questioning of the jurors concerning their ability to remain impartial, during which the court solicited a show of hands to specific questions, and its prompt curative instructions, were appropriate”); People v. Gonzalez, 232 A.D.2d -36- 204, 205 (1st Dep’t 1996) (“defense counsel’s speculative claim of jury taint is unsupported by the record, and the trial court appropriately exercised its discretion in questioning the jurors as a group, rather than individually”); Matiash, 197 A.D.2d at 795-96 (where witness overheard two jurors discussing the case at lunch, but the conversation was “essentially innocuous,” court did not abuse discretion in speaking to jury panel). Moreover, because the judge here spoke directly to the jurors — including to the jurors who authored and handed the note to the court — and verified that none of the jurors had prematurely deliberated, the instant situation is unlike the various cases upon which defendants rely. Those cases involved judges who were found to have abused their discretion by making no inquiry at all in response to a legitimate allegation of possible juror misconduct (see Brief for Mejias at 18-20; Brief for Rodriguez at 24-25). For example, in People v. Ordenana, 20 A.D.3d 39 (1st Dep’t 2005), the judge refused to conduct any inquiry even after an alternate juror, upon being excused from the case, told the defendant’s attorney that she and some of the other sitting jurors had been “discussing the case all along” during the trial. Id. at 41- 42. And, in People v. McClenton, 213 A.D.2d 1 (1st Dep’t 1995), the court declined to take any steps in response to a juror’s note, handed to the court before deliberations, asking to notify his employer that he would be making it to work that evening “beyond a reasonable doubt.” Id. at 3-6; see Brief for Mejias at 20, 33 (citing People v. Gordon, 77 A.D.2d 662, 664 [2d Dep’t 1980] [judge made no inquiry into -37- pre-deliberation jury note seemingly asking how to apply the law to the facts of the case; error compounded by two additional trial errors]). Here, not only was the possible indicia of juror misconduct far more tenuous than in any of the cases cited above, but also Justice Wittner, unlike the judges in those cases, affirmatively questioned the jurors about the matter at issue and ascertained that nothing untoward had occurred. The decisions upon which defendants rely are thus completely inapt. Defendants have not only failed to demonstrate that the trial judge abused her discretion in handling this incident, but they have not shown any semblance of prejudice. And, of course, “[a]bsent a showing of prejudice to a substantial right,” “proof of juror misconduct does not entitle a defendant to a new trial.” Irizarry, 83 N.Y.2d at 561. As explained, Justice Wittner confirmed that none of the jurors had discussed the case. Thus, there is affirmative — and uncontradicted — record support for the conclusion that no premature deliberation occurred. In light of this fact, it is noteworthy that no defendant apparently spoke to the jurors about this matter after the verdict. Rodriguez even filed a motion to set aside the verdict under Criminal Procedure Law 330.30(1), claiming, inter alia, that his right to due process was violated because the court’s questioning of the jury panel supposedly had a “chilling effect” on the jurors. Yet in moving for that relief, Rodriguez never obtained and filed juror affidavits attesting to the supposed misconduct about which he hypothesizes. See, e.g., People v. Covington, 44 A.D.3d 510, 510-11 (1st Dep’t 2007) (“The allegations of premature discussion of the case -38- were not supported with a sworn affidavit or affirmation from anyone”). This is a significant shortcoming under the particular circumstances of this case. Again, the trial judge spoke with the jurors regarding the note and obtained their assurance that they had not prematurely deliberated about the evidence. Where defendants nonetheless argue that the court abused its discretion because the jurors’ unanimous response to the court’s questioning was essentially not credible (see Brief for Mejias at 21; Brief for Rodriguez at 3-4), it warrants emphasis that they have never provided an affidavit from a juror, or any proof at all, to controvert the court’s finding. Furthermore, even assuming, for argument’s sake, that juror eleven’s use of “pretext” signaled that she had prematurely adopted the prosecution’s view of one aspect of the evidence — defendants’ use of “relatively innocuous language” over the wiretap as a “pretext” for their drug trafficking (Brief for Mejias at 24; see also Brief for Rodriguez at 14-16, 22) — defendants still could not show prejudice. That is because defendants’ guilt was not established solely by the interpretation of phone calls intercepted over the wiretap. While some of those conversations shed light on the planning and preparation that went into the drug deal, there was overwhelming evidence, separate from the information gleaned from those cryptic phone calls, establishing defendants’ participation in the crimes. Foremost, and quite powerfully, the authorities arrested defendants Mejias and Rodriguez within a few feet of a tractor trailer filled with nearly 400 pounds of cocaine worth approximately $14 million (Flaherty: 126-28, 143, 145, 497, 580, 582, -39- 1042 [R328-30, R345, R347, R612, R695, R697, R1090]; Weuve: 665 [R765]; Luna: 905 [R979]; Annarella: 933, 939-40 [R1007, R1008-09]; Forget: 1183-84 [R1218-19]). Nor was defendants’ proximity to the drug-laden vehicle a mere coincidence. When the cocaine-filled truck arrived in New York City, defendant Mejias had stood guard over it while his accomplices, including defendant Rodriguez, searched for an alternative stash house to store the drugs. Mejias paced alongside the tractor trailer, used a key to enter the truck’s cab, and even performed counter-surveillance by looking into vehicles parked in the vicinity of the truck (Luna: 883-84, 904 [R957-58, R978]; Annarella: 929-30 [R1003-04]; Najac: 951, 958, 960-62, 967 [R1020, R1027, R1029-31, R1036]; Forget: 1178-79 [R1213-14]). Furthermore, one month earlier, defendants Mejias and Rodriguez had participated in a practice-run of the cocaine delivery in which Armando Magallon parked a tractor trailer in a Bronx supermarket parking lot — the very same parking lot from which, one month later, the same tractor trailer that was driven once more by Magallon — but now filled with 400 pounds of cocaine — was seized by the authorities (Flaherty: 580-81, 597-600, 610-12, 619 [R695-96, R712-15, R725-27, R734]; Fernandez: 608-11, 616-18, 626, 651-53 [R723-26, R731-33, R741, R751-53]; Weil: 663 [R763]; Forget: 1277-78, 1291-92 [R1230-31, R1232-33]).11 All of this 11 In addition, Mejias wired $2,000 to the drug supplier in Mexico (Flaherty: 837-39 [R911-13]; Anderson: 712-22 [R802-12]); participated in dismantling a deck in the driveway of a New Jersey house to accommodate the drug-filled tractor trailer (Luna: 876-79, 890 (Continued…) -40- evidence, which was based on surveillance conducted by members of the drug task force, had inculpatory value wholly separate from the interpretation of the wiretapped phone calls. Accordingly, even if the juror’s use of the word “pretext” could be construed as having the expansive import that defendants now assign to it, “there was no reasonable possibility of any prejudice to defendant[s].” Rivera, 262 A.D.2d at 235-36. * * * In sum, by speaking to the jurors and confirming that they had not been discussing the case, the trial judge appropriately exercised her discretion in responding to a juror’s note requesting to hear additional evidence. ______________________ (…Continued) [R950-53, R964]); and helped purchase a cell phone for Magallon (Weil: 654, 657, 660-61, 681, 684, 696 [R754, R757, R760-61, R781, R784, R766]; Flaherty: 767 [R852]). The authorities also seized the following items from Mejias’s home pursuant to a search warrant: a scale containing cocaine residue, a money counter, and a list of expenses for codefendant Lantigua’s newly-formed trucking company (Thornell: 985-87 [R1049-51]; Forget: 1185-86, 1188 [R1220-21, R1223]; People’s Exhibits 211, 244, 165, 165A). For his part, Rodriguez assisted Loveras, the drug organization’s kingpin, in attempting to find an alternative stash house, and Rodriguez’s Jeep, which was parked near the tractor trailer when he was arrested, contained the receipt for Mejias’s money wire to the Mexican drug supplier (Flaherty: 212-14 [R415-17]; Luna: 886-88, 889 [R960-62, R963]; Annarella: 932 [R1006]; Flaherty: 1037-38 [R1085-86]; People’s Exhibit 117). -41- POINT II THE TRIAL COURT’S RULINGS, ALLOWING BACKGROUND EVIDENCE IN RELATION TO THE PRACTICES OF LARGE-SCALE NARCOTICS TRAFFICKERS, WAS PROPER IN THIS CASE INVOLVING THE INTERNATIONAL SHIPMENT AND DELIVERY OF 400 POUNDS OF COCAINE (Answering Mejias’s Brief, Point II; Rodriguez’s Brief, Point II). As charged in the indictment and proven at trial, defendants Mejias and Rodriguez aided Carlos Loveras in organizing, paying for, and receiving a massive drug delivery — 400 pounds of cocaine worth approximately $14 million — that was transported through Costa Rica, Mexico, and California, before reaching New York City for intended distribution and sale. During the People’s case, the judge qualified Special Agent Flaherty as an expert in narcotics trafficking, allowing him to testify about some of the common practices of importation-level drug traffickers — including where those narcotics are produced, how they are trafficked into the United States, how the drugs are paid for, and the use of stash houses — which corresponded to the criminal conduct of defendants in this case. On direct appeal, Mejias and Rodriguez argued that the judge erred in permitting this background testimony, and also improperly allowed the People to introduce into evidence a map of the western hemisphere. The Appellate Division rejected defendants’ assertions because Agent Flaherty’s testimony was beyond the -42- knowledge of the average juror and would aid the jurors in understanding the evidence “in a case involving complex, international drug activity” (A20). The Appellate Division further held that the map was appropriately admitted to help illustrate the international flow of drugs, and that it was not unduly prejudicial (A21). Before this Court, defendants renew their complaints about the trial judge’s rulings. However, defendants’ claims are partially unpreserved and utterly meritless. A. The trial evidence established, among other things, that Loveras’s drug supplier, a man named “Cuna,” spoke to Loveras from a phone number with a Mexican area code (Flaherty: 510, 513-16, 541, 834-37, 842-47, 1015-19, 1065, 1094 [R625, R628-31, R656, R908-11, R916-21, R1063-67, R1113, R1144]; People’s Exhibits 1, 54, 57, 67 [R2-5, R148-52, R161-65, R196-99]); that Loveras had to obtain permission from his partners in Mexico to make large purchases in furtherance of the drug trafficking enterprise, such as potentially supplying Lantigua with $50,000 to purchase the cab for a new tractor trailer (Flaherty: 817-18, 825 [R891-92, R899]; People’s Exhibits 31-32, 42-44, 47, 59 [R76-80, R116-24, R129-30, R168-73]); that Lantigua wired money to two cities in Costa Rica, and Mejias wired money to a city in Mexico (Anderson: 712-15, 719, 722, 727-33; [R802-05, R809, R817-23]; Flaherty: 837-39, 1063 [R911-13, R1111]; People’s Exhibits 39, 49, 51, 55 [R101-09, R133-36, R139-42, R153-57]); that the cocaine-filled tractor trailer traveled through California en route to New York (Flaherty: 842 [R916]; People’s Exhibit 57 [R161-65]); and that -43- Rodriguez purchased cocaine from Loveras to sell to his own clientele (Flaherty: 574- 79, 1012, 1090-91, 1103 [R689-94, R1060, R1140-41, R1153]; People’s Exhibits 15-16, 65 [R35-39, R188-91]). At trial, the People moved to allow Special Agent Flaherty, the co-case agent in charge of the investigation, to testify as an expert. One of the stated purposes of his expert testimony was to assist the jury in understanding the operating methods of high-level narcotics organizations. Over the objection of defendant Mejias, Justice Wittner deemed Flaherty an expert in, inter alia, high-level narcotics trafficking (Flaherty: 75 [A51]). After qualifying Agent Flaherty as an expert, the People moved to introduce into evidence a map of the western hemisphere (79 [A55]). The defense objected that the map was irrelevant and improperly “dressing up the witness.” The prosecutor informed the court that the map pertained to the route by which drug traffickers transport cocaine from South America to New York — a topic about which Agent Flaherty was clearly qualified to testify (79-81 [A55-57]). Furthermore, the prosecutor explained, the evidence at trial would establish that defendants imported the cocaine in this case through Mexico, and thus the route in which drugs were smuggled was directly relevant to the People’s case (80-82 [A56-58]). Justice Wittner overruled the defense objection and allowed the map into evidence (82 [A58]). While opining that she did not view the map as “part of this case,” the judge nonetheless concluded that it was “innocuous” (81-82 [A57-58]). -44- Agent Flaherty then testified about some of the common operating methods of high-profile drug trafficking organizations. This included testimony about, among other topics: the countries where cocaine is produced; the routes by which large shipments of cocaine reach the United States through Mexico, including stop-off points in other Central American countries; the different methods used by smugglers to get drugs into Mexico; the utilization of stash houses; the methods by which drugs are smuggled across the border into the United States and then transported domestically; and the techniques used to send payments back to the cocaine producers and transporters. Flaherty also testified about the different organizational levels in the drug trade, i.e., importation, wholesale, and street-level dealing; the manner in which cocaine is diluted and marked up in cost between these different levels; and the price of cocaine at the time of the instant investigation. Moreover, the agent described some of the different techniques used to investigate and prosecute drug traffickers (see Flaherty: 78-109 [R280-311]). The defense attorneys objected four times on relevance grounds during this portion of Agent Flaherty’s testimony. The judge sustained two of these objections, which pertained to questions about the nature of street-level drug sales, and the steps necessary to obtain a court-authorized wiretap (Flaherty: 100, 104 [R302, R306]). Justice Wittner overruled the two other objections, which involved questions about the organizational structure of international drug trafficking operations, and whether a judge has to authorize the extension of a wiretap (Flaherty: 86, 105 [R288, R307]). -45- B. Before this Court, Mejias and Rodriguez challenge the judge’s decision to permit Agent Flaherty to give background testimony about some of the common practices of importation-level drug traffickers — many of which mirrored the criminal conduct of defendants in this case — and to allow the People to introduce into evidence a map of the western hemisphere to aid in that testimony. Yet these claims are partially unpreserved. To be sure, Mejias opposed the judge’s decision to qualify Agent Flaherty as an expert in narcotics trafficking, Mejias and Rodriguez challenged the introduction of the map into evidence, and, as noted above, defendants objected to four questions posed to the agent while giving this background testimony. However, beyond complaining that this evidence was irrelevant or improperly embellished the agent’s credentials, neither defendant argued that it was either intended to, or had the effect of, depicting them as part of a worldwide network of drug traffickers, and thus “smear[ed]” them (Brief for Mejias at 31; Brief for Rodriguez at 4, 27). Having failed to raise these complaints before the trial court, defendants have not preserved them for review by this Court. See CPL 470.05(2). In any event, defendants’ claims are completely unavailing. Of course, all relevant evidence is admissible unless its admission violates some exclusionary rule. People v. Scarola, 71 N.Y.2d 769, 777 (1988); People v. Alvino, 71 N.Y.2d 233, 241 (1987). Relevance turns on whether the evidence has any tendency to prove the existence of a material fact — that is to say, it “makes determination of -46- the action more probable or less probable than it would be without the evidence.” Scarola, 71 N.Y.2d at 777; Alvino, 71 N.Y.2d at 241. Moreover, expert testimony is admissible if it “would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror.” People v. Taylor, 75 N.Y.2d 277, 288 (1990); see People v. Hill, 85 N.Y.2d 256 (1995). With those precepts in mind, this Court and other courts have often upheld the admission of relevant evidence about the general methods used by illegal drug sellers when a defendant is part of an illicit drug dealing operation. In such cases, after all, the organization and functioning of a drug operation is relevant to a material fact, and can therefore aid the jury in understanding the evidence and assessing guilt. See People v. Brown, 97 N.Y.2d 500, 505 (2002); People v. Garcia, 83 N.Y.2d 817 (1994); People v. Singleton, 270 A.D.2d 190 (1st Dep’t 2000); People v. Diaz, 181 A.D.2d 595 (1st Dep’t 1992). True, the decisions cited above involved street-level drug sales; the expert testimony in those cases thus centered on the nature and indicia of the low-level drug dealing in which those defendants were engaged, as well as law enforcement techniques commensurate with those kinds of illicit transactions. Here, the circumstances were different: defendants were charged with, and the evidence proved, that they participated in a high-level narcotics trafficking enterprise that imported hundreds of pounds of cocaine from abroad for wholesale distribution in New York City. Yet the underlying holding in those cases is obviously no less applicable to the -47- situation at hand. In other words, this Court has already found that, for instance, expert testimony about the roles of a “drug steerer” and “stash man” is salient and admissible in trying a defendant who sold crack in a “buy and bust” police sting. It therefore follows that background testimony about the nature and practices of international drug smuggling operations, along with corresponding law enforcement methods of investigation, is material and appropriate to aid a jury in understanding the evidence presented against defendants who traffic in large quantities of narcotics. See generally United States v. Khan, 787 F.2d 28, 34-35 (2d Cir. 1986) (in case involving scheme to smuggle heroin into the country, proper for federal agent to give expert testimony about heroin trafficking in Pakistan). In light of these principles, the trial judge here soundly exercised her discretion in allowing Agent Flaherty to testify about the general practices of large-scale cocaine trafficking organizations. Foremost, as recounted throughout this brief, defendants were convicted for their membership in precisely that: a drug trafficking organization that imported a massive quantity of cocaine — roughly 400 pounds worth $14 million — into New York City from abroad. The evidence established a complex operational hierarchy in which the kingpin, Loveras, relied upon suppliers in Mexico to obtain importation-level quantities of cocaine, which were smuggled through Costa Rica and into California, before eventually being transported to New York. Defendants assisted Loveras in various aspects of this drug selling operation. Defendant Mejias, for example, helped find truck drivers to transport the cocaine (see, -48- e.g., Flaherty: 770-71, 774 [R855-56, R859]; People’s Exhibits 53, 60 [R146-47, R174- 76]), located stash houses (see, e.g., Flaherty: 569-72, 586-87, 594-95 [R684-87, R701- 02, R709-10]; People’s Exhibits 19, 22, 27 [R46-48, R54-45, R67-68]), and wired money to Mexico as partial payment for the shipment of the drugs (Flaherty: 212-14, 837-39 [R415-17, R911-13]; People’s Exhibit 55 [R153-57]). Defendant Rodriguez participated in the practice run of the drug delivery (Flaherty: 597-600 [R712-15]; Fernandez: 616-19, 626 [R731-34, R741]; Forget: 1277-78, 1291 [R1230-31, R1232]; People’s Exhibit 25 [R62-64]), attempted to find an alternative stash house when the need arose (Flaherty: 1037-08 [R1085-86]; People’s Exhibit 84 [R240-41]), and purchased cocaine from Loveras for his own clientele (Flaherty: 574-78, 1011-12, 1090-91, 1102-03 [R689-93, R1059-60, R1140-41, R1152-53]; People’s Exhibits 15-16, 65 [R35-39, R188-91]). Given the nature of this proof, Agent Flaherty’s testimony concerning the general practices of drug trafficking organizations was not only relevant, but also an entirely appropriate method of helping the jury to understand the evidence and to draw conclusions about defendants’ guilt. For example, the agent’s discussion of where cocaine is produced and its route to the United States explained why Loveras’s drug suppliers and financers were based in Mexico. And Flaherty’s testimony about the need to pay everyone who “touched” the cocaine during its transportation, and about the storage of the drugs en route, explained why it was part of the conspiracy for defendant Mejias and codefendant Lantigua to wire cash to Mexico and Costa -49- Rica. Insofar as it was necessary to send payments to get the drugs “released” from stash houses, this testimony also shed light on why the arrival date of the cocaine shipment was repeatedly postponed. Moreover, the agent’s testimony about the wholesale price of cocaine, and its value once diluted and sold on the street, assisted the jury in understanding the intercepted phone conversations in which the conspirators cryptically discussed the sale and resale prices of the drugs. Agent Flaherty’s testimony was therefore both relevant and completely proper. The various decisions upon which defendants rely in arguing to the contrary are completely inapt — although they do provide instructive points of comparison (see Brief for Mejias at 29-31, Brief for Rodriguez at 27-28). In that regard, the cases cited by defendants all involved defendants accused and convicted of single lower- level drug possession and/or sale crimes. And, in those cases, there was no evidence that the defendants had participated in the larger-scale operations of a narcotics importation or distribution business. Thus, in those cases, the appellate courts found error in the admission at trial of evidence regarding such larger-scale organizations. See People v. Colon, 172 A.D.2d 173, 174 (1st Dep’t 1991) (improper to foster impression that the defendant was involved in large-scale drug trade where charged with only a single instance of heroin possession); People v. Soto, 172 A.D.2d 355 (1st Dep’t 1991) (error to permit expert testimony regarding, inter alia, methods by which narcotics could be distributed and their value increased, where the defendant was “not charged with possessing the drugs with intent to sell”); People v. Negron, 136 A.D.2d -50- 523, 526 (1st Dep’t 1988) (background evidence improper where the defendant was charged only with a single sale, and evidence did not support an inference of involvement in a larger organization); People v. Maldonado, 50 A.D.2d 556 (1st Dep’t 1975) (improper background evidence where the defendant was charged with single drug sale). Here, in striking contrast, defendants were charged with possessing almost 400 pounds of cocaine — worth $14 million — which was routed through Costa Rica and Mexico, smuggled into the United States via California, and shipped to New York City secreted inside a tractor trailer. Defendants were caught not just selling dime- bags or possessing a stash of narcotics that they could secrete in their pants, but rather were players in a narcotics trafficking enterprise of the highest magnitude. Indeed, these defendants actively conspired to smuggle enough drugs into New York City to supply an entire borough with cocaine and crack. In this context, which is radically different than in the cases that defendants cite, background testimony about the practices of importation-level drug suppliers and the geography of drug smuggling routes was absolutely material and appropriate. In short, because the evidence proved that defendants here were members of a complex and large-scale drug operation, and that each performed a variety of different roles in helping to coordinate and facilitate the importation and distribution of hundreds of pounds of cocaine, the judge correctly allowed Agent Flaherty to testify about the general practices of such illicit business organizations. See United States v. -51- Young, 745 F.2d 733, 761 (2d Cir. 1984) (where one issue was whether building was a heroin “mill,” expert testimony about chain of heroin distribution starting overseas, which included the manner in which retail heroin distribution organizations obtain and process raw heroin, “provided the background for his testimony about the characteristics and operating methods of a heroin mill”) (internal quotations omitted). For these same reasons, there was clearly nothing objectionable about Justice Wittner permitting the People to introduce into evidence a map of the western hemisphere. Whether to allow such demonstrative evidence turns simply on its relevance to the issues before the jury. See People v. Mirenda, 23 N.Y.2d 439, 452-53 (1969). As already described, the evidence established that defendants worked together in a drug trafficking organization, that the organization’s cocaine supplier and financer was in Mexico, and that, in furtherance of the conspiracy, cash was wired to Mexico and Costa Rica. In this context, there was nothing improper about permitting the jurors to examine a map — which the judge characterized as “innocuous” — so that they could more easily visualize Agent Flaherty’s testimony about how cocaine reached New York from abroad. While Justice Wittner appeared to suggest that the map was not relevant (see Brief for Mejias at 30-31; Brief for Rodriguez at 29, 31), in context, the judge’s underlying point was clear: that while the evidence would establish that the cocaine was smuggled through Mexico into the United States, Agent Flaherty would not be using the map to testify about the actual traced route of the drug shipment because -52- the load of cocaine was itself not under surveillance until it reached New York City. Justice Wittner understood, for instance, that the agent would not be using the map to trace the specific highways and border-crossings traveled by the cocaine-filled tractor trailer, nor to identify particular stopover locations, since there would be no proof of those details. On the other hand, as the People pointed out and the judge recognized, evidence would be presented of, inter alia, phone calls placed by the coconspirators to a drug supplier in Mexico. Thus, the general manner in which cocaine is smuggled from South and Central America into the United States was directly germane to the case, as it provided the jury with context for aspects of the forthcoming evidence relating to the workings of the drug trafficking organization in which defendants were members. For this limited purpose, the map plainly constituted a permissible visual aid for the jury. Ultimately, even assuming that the judge somehow erred in allowing this background testimony and map, it was assuredly harmless. See People v. Crimmins, 36 N.Y.2d 230, 241 (1975). In a case involving mutually corroborative surveillance and documentary proof, coupled with extensive wiretap evidence — not to mention the fact that defendants Mejias and Rodriguez were arrested within only feet of the cocaine-filled tractor trailer — it is inconceivable that a map of the western hemisphere, or a primer on large-scale drug trafficking organizations, contributed even minimally to defendants’ convictions. -53- * * * In sum, the judge did little more than adhere to well-established law in permitting highly relevant background evidence pertaining to large-scale drug trafficking organizations. CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: TIMOTHY C. STONE Assistant District Attorney DANA POOLE TIMOTHY C. STONE Assistant District Attorneys Of Counsel October 19, 2012 PRINTING SPECIFICATIONS STATEMENT The word count for this brief is 13310, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2007. The brief is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes.