PEOPLE v. ALVAREZ (2018)

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered January 14, 2015, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree (three counts), criminal possession of a controlled substance in the third degree (four counts) and criminal possession of a controlled substance in the fourth degree, and sentencing him to an aggregate term of 18 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).  There is no basis for disturbing the jury's credibility determinations.  Defendant was connected to all of the drug transactions by extensive evidence, including, among other things, cell phone records and intercepted phone calls.  Where applicable, the evidence amply supported inferences that defendant was accessorially liable for the conduct of others (see Penal Law § 20.00).

The People established a sufficient chain of custody for the drugs purchased from defendant and codefendant on November 14, 2012, providing reasonable assurances of the identity of the drugs and substantially unchanged condition (see People v. Julian, 41 N.Y.2d 340, 392 N.Y.S.2d 610, 360 N.E.2d 1310 [1977] ).  Any deficiencies in the chain of custody as to the identity of the drugs went to the weight and not the admissibility of the evidence (see People v. White, 40 N.Y.2d 797, 799–800, 390 N.Y.S.2d 405, 358 N.E.2d 1031 [1976] ).

We reject defendant's argument that the court impermissibly amended certain counts of the indictment by giving a supplemental instruction on accessorial liability in response to the deliberating jury's inquiry.  An indictment charging a defendant as a principal is “not unlawfully amended by the admission of proof and instruction to the jury that a defendant is additionally charged with acting-in-concert to commit the same crime, nor does it impermissibly broaden a defendant's basis of liability, as there is no legal distinction between liability as a principal or criminal culpability as an accomplice” (People v. Rivera, 84 N.Y.2d 766, 769, 622 N.Y.S.2d 671, 646 N.E.2d 1098 [1995];  see also People v. Duncan, 46 N.Y.2d 74, 79–80, 412 N.Y.S.2d 833, 385 N.E.2d 572 [1978], cert denied 442 U.S. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275 [1979] ).

The court providently exercised its discretion in denying defendant's recusal motion (see People v. Moreno, 70 N.Y.2d 403, 405, 521 N.Y.S.2d 663, 516 N.E.2d 200 [1987] ).  There is no indication that the court was actually biased against defendant or defense counsel, or that denial of the recusal motion deprived defendant of a fair trial.  During the trial, the court occasionally made remarks that should have been avoided.  However, these remarks did not prevent the jury from reaching an impartial verdict based upon the evidence presented (People v. Moulton, 43 N.Y.2d 944, 945, 403 N.Y.S.2d 892, 374 N.E.2d 1243 [1978];  People v. Adams, 117 A.D.3d 104, 105, 983 N.Y.S.2d 246 [1st Dept. 2014], lv denied 24 N.Y.3d 1000, 997 N.Y.S.2d 119, 21 N.E.3d 571 [2014] ).

We have considered and rejected defendant's pro se claims (see generally Waller v. Georgia, (467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 [1984] ).

We perceive no basis for reducing the sentence.