PEOPLE v. LANTIGUA

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Junior LANTIGUA, Defendant–Appellant.

The People of the State of New York, Respondent, v. Miguel Mejias, Defendant–Appellant.

The People of the State of New York, Respondent, v. Antonio Rodriguez, Defendant–Appellant.

Decided: July 07, 2011

ANDRIAS, J.P., SWEENY, RENWICK, FREEDMAN, MANZANET–DANIELS, JJ. Goldberger & Dubin, P.C., New York (Stacey Van Malden of counsel), for Junior Lantigua, appellant. John R. Lewis, Sleepy Hollow, for Miguel Mejias, appellant. Edward M. Kratt, P.C., New York (Edward M. Kratt of counsel), for Antonio Rodriguez, appellant. Cyrus R. Vance, Jr., District Attorney, New York (Timothy C. Stone of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered October 27, 2009, convicting defendant Junior Lantigua of conspiracy in the second degree, and sentencing him to a term of 2 to 6 years, unanimously affirmed.   Judgment, same court and Justice, rendered September 24, 2009, convicting defendant Miguel Mejias of criminal possession of a controlled substance in the first degree and conspiracy in the second degree, and sentencing him to concurrent terms of 13 years and 5 to 15 years, unanimously affirmed. Judgment, same court and Justice, rendered February 9, 2010, convicting defendant Antonio Rodriguez of criminal possession of a controlled substance in the first degree and conspiracy in the second degree, and sentencing him to concurrent terms of 12 years and 5 to 15 years, unanimously affirmed.

 The court's rulings relating to expert testimony were proper exercises of discretion.   The People's translator was fully qualified to translate the Spanish conversations intercepted on wiretaps.   The court properly permitted an expert to give background testimony on large-scale narcotics operations and to explain coded language.   This information is beyond the knowledge of the average juror and would assist the jurors in understanding the evidence in a case involving complex, international drug activity (see People v. Brown, 97 N.Y.2d 500, 505–506, 743 N.Y.S.2d 374, 769 N.E.2d 1266 [2002];  People v. Ramirez, 33 A.D.3d 460, 826 N.Y.S.2d 184 [2006], lv. denied 7 N.Y.3d 928, 827 N.Y.S.2d 697, 860 N.E.2d 999 [2006];  People v. Contreras, 28 A.D.3d 393, 816 N.Y.S.2d 10 [2006], lv. denied 7 N.Y.3d 847, 823 N.Y.S.2d 776, 857 N.E.2d 71 [2006] ).   Given the type of case, use of a map of the Western Hemisphere to illustrate the international flow of drugs was also permissible and was not unduly prejudicial.

 At the close of evidence and prior to summations, the court received a jury note requesting information and containing language that allegedly suggested the possibility of premature deliberations.   The court did not abuse its discretion when it declined to conduct any individual inquiries, but instead addressed the problem by way of inquiries directed to the jury as a group, along with careful instructions (see People v. Buford, 69 N.Y.2d 290, 298–299, 514 N.Y.S.2d 191, 506 N.E.2d 901 [1987] ). Given the circumstances, there is no reason to believe there were actually any premature deliberations, and the court's actions were sufficient to avoid any prejudice.

 The court properly precluded defendant Rodriguez from using a surveillance report to impeach an investigator.   The investigator did not prepare the report, no statements in it were attributable to him, and Rodriguez did not lay any other foundation for use of the report (see People v. Johnson, 227 A.D.2d 101, 102, 641 N.Y.S.2d 644 [1996], lv. denied 88 N.Y.2d 987, 649 N.Y.S.2d 394, 672 N.E.2d 620 [1996] ).   Rodriguez did not preserve his claim that the court's ruling violated his right of confrontation and we decline to review it in the interest of justice.   As an alternative holding, we also reject it on the merits.

The court's charge sufficiently conveyed the principle that the jury was required to consider each charge separately (see generally People v. Fields, 87 N.Y.2d 821, 823, 637 N.Y.S.2d 355, 660 N.E.2d 1134 [1995] ).

Defendants did not preserve any of their remaining challenges to the court's instructions, or any challenges to the sufficiency of the evidence or the court's dismissal of a juror, and we decline to review them in the interest of justice.   As an alternative holding, we also reject them on the merits.

We perceive no basis for reducing Rodriguez's sentence.