Crimes - Appeal - Preservation of Issue for Review - Extent of Expert Testimony Regarding Use of Slang Terms in Wiretapped Phone Conversations

Crimes - Witnesses - Expert Witness - Telephone Conversations Decoded Generally Rather than Limiting Comments to Code Words - Harmless Error

Crimes - Verdict - Weight of Evidence - Conspiracy Criminal Use of Drug Paraphernalia

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered November 3, 2011, as amended December 2, 2011, convicting defendant, after a nonjury trial, of conspiracy in the second degree and criminally using drug paraphernalia in the second degree (four counts), and sentencing him to an aggregate term of 1 to 3 years, unanimously affirmed.

Defendant failed to preserve his claim that the testimony of the People's expert regarding defendant's use of slang terms during wiretapped phone conversations exceeded the limits in People v Inoa (25 NY3d 466 [2015]; see People v Santiago, 149 AD3d 516, 516 [1st Dept 2017]), and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. While the expert often "decode[d] telephone conversations generally," rather than limiting his comments to just code words, which sometimes made the expert into a "summation witness" (Inoa, 25 NY3d at 473-474), we find that any error was harmless in light of the overwhelming evidence of guilt, and we perceive no significant probability that the error affected the verdict (see id. at 472; People v Crimmins, 36 NY2d 230 [1975]). First, the primary concern in Inoa—that inadmissible expert testimony would usurp the factfinding role of the jury (25 NY3d at 473)—was not present in this nonjury trial (see People v Bolt, 152 AD3d 408, 408-409 [1st Dept 2017], lv denied 30 NY3d 947 [2017]). Second, defendant's guilt was established by other compelling evidence, including observations of his clandestine interactions with other narcotics traffickers, the arrest of an associate immediately after defendant handed the associate a bag with $28,000, and defendant's admissions in same-day wiretapped phone conversations that he was in hiding and unable to complete other heroin transactions due to the associate's arrest. Defendant's guilt was further demonstrated by wiretapped conversations in which he attempted to procure 300 grams of a controlled substance for resale.

For the same reasons, the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]; see also People v Baque, 43 NY3d 26 [2024]). In addition to the expert's proper testimony establishing that defendant's wiretapped calls discussed sales of large quantities of narcotics, the verdict was supported by eyewitness testimony establishing defendant's involvement in the November 4, 2009 sale, which led to the recovery of $28,000, and additionally supported by the recovery of drug paraphernalia from his apartment. Concur—Kern, J.P., Kennedy, González, Shulman, O'Neill Levy, JJ.