PEOPLE v. ADEOLA (2004)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered June 10, 2002, convicting him of criminal sale of a controlled substance in the first degree, criminal sale of a controlled substance in the second degree, and conspiracy in the second degree, upon a jury verdict, and sentencing him to consecutive indeterminate terms of imprisonment of 25 years to life on the conviction of criminal sale of a controlled substance in the first degree, 8 1/3 years to life on the conviction of criminal sale of a controlled substance in the second degree, and 8 1/3 years to life on the conviction of conspiracy in the second degree.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by directing that all sentences run concurrently with each other;  as so modified, the judgment is affirmed.

Contrary to the defendant's contention, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of criminal sale of a controlled substance in the first degree, criminal sale of a controlled substance in the second degree, and conspiracy in the second degree beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

The People demonstrated that the wiretap investigation was carried out with the appropriate procedures in place to minimize interception of nonpertinent communications (see CPL 700.30[7];  People v. Floyd, 41 N.Y.2d 245, 250, 392 N.Y.S.2d 257, 360 N.E.2d 935).   The defendant failed to rebut this showing, and thus, the court correctly denied that branch of his motion which was to suppress the audiotapes produced from the investigation (see People v. Floyd, supra ).   Moreover, the court properly determined that certain audiotapes were sufficiently audible to warrant their admission into evidence (see People v. Wilson, 207 A.D.2d 463, 464, 615 N.Y.S.2d 769;  People v. Robinson, 158 A.D.2d 628, 551 N.Y.S.2d 599;  cf. People v. Mincey, 64 A.D.2d 615, 406 N.Y.S.2d 526).

The sentences imposed were excessive to the extent indicated.

The defendant's remaining contentions are without merit.