| People v Burroughs |
| 2009 NY Slip Op 05697 [64 AD3d 894] |
| July 9, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v HaroldBurroughs Jr., Appellant. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Spain, J.P. Appeal from a judgment of the County Court of Greene County (Lalor, J.),rendered August 12, 2008, upon a verdict convicting defendant of the crimes of criminalpossession of a controlled substance in the second degree, criminal possession of a controlledsubstance in the third degree (three counts) and criminal sale of a controlled substance in thethird degree (two counts).
Following a jury trial, defendant was convicted as charged of criminal possession of acontrolled substance in the second degree, three counts of criminal possession of a controlledsubstance in the third degree and two counts of criminal sale of a controlled substance in thethird degree based upon evidence that he possessed and sold cocaine to a confidential informant(hereinafter CI) in the Town of Greenville, Greene County. The evidence at trial established thatin March 2007, suspicious that defendant was involved in drug sales, police officers with theNew York State Police Community Narcotics Enforcement Team utilized a CI to engage in twocontrolled buys on March 13 and 14 at the apartment where defendant resided. Officers observedthe CI, equipped with a sound recording device and provided with prerecorded "buy" money,enter and exit the apartment, and the senior investigator overheard the transactions via anelectronic transmitter. Shortly after the second purchase, police executed a search warrant at theapartment and found, among other things, a triple beam scale and a smaller digital scale, syringes[*2]and a large bag containing four smaller bags ofapproximately five ounces of cocaine in the couch in the living room. A search of defendantdisclosed the prerecorded buy money in his pocket. At trial, the senior investigator, the CI andanother witness testified that it was defendant's voice on the recordings; the CI identifieddefendant, who he knew previously, as the seller and described how defendant had removed thecocaine from under the couch cushions during the second sale. Upon his convictions, defendantwas sentenced to an aggregate prison term of 19 years with seven years of postreleasesupervision. Defendant now appeals, and we affirm.
We find defendant's contention that his convictions were not supported by legally sufficientevidence to be unavailing. Initially, defendant argues that the People's forensic scientist failed toadequately establish that the alleged narcotics were cocaine. The expert testified that each of thethree tests she performed confirmed that the substances were cocaine. Contrary to defendant'sassertion, it was not necessary for the expert to establish the accuracy of the known standard sheemployed in one of three separate tests of the seized substances because she also performed twoother tests which did not require comparison with an established standard (see People v Plummer, 24 AD3d1027, 1029 [2005], lv denied 6 NY3d 837 [2006]; People v Lopez, 266AD2d 735, 738 [1999], lv denied 94 NY2d 922 [2000]).
As to the admissibility of the voice recordings, the People initially indicated, in response todefendant's demand to produce, their intent not to use the recordings at trial. However, thePeople later furnished a copy of the recordings to defendant—months prior totrial—and, at that time, announced their intent to use them. Under such circumstances,defendant suffered no prejudice and it was not an abuse of discretion for County Court to admitthe recordings into evidence (see People v Jenkins, 98 NY2d 280, 283-284 [2002]).
As to the recordings' authenticity, the senior investigator who recorded the transactionstestified that he had listened to them as they occurred and later transferred the original recordingsto a CD. He testified that the CD recordings were a fair and accurate reproduction of the originalrecordings of the conversations without any changes, alterations or deletions. He also testifiedthat he recognized the voice on the recordings as that of defendant based upon a shortconversation he had with defendant a few months prior to these sales and having overheard thesetransactions when they occurred. In light of this proof, County Court properly found that the CDrecordings had been authenticated (see People v Ely, 68 NY2d 520, 527 [1986]; People v Tillman, 57 AD3d 1021,1024-1025 [2008]).
Moreover, the People sufficiently established that defendant possessed and sold cocaine tothe CI on the days in question. The CI and another witness testified that they were present whenthe sales occurred, that it was defendant who actually possessed and sold the cocaine to the CIand that it was defendant's voice on the CD recordings. Indeed, their testimony was corroboratedby the CD recordings, the testimony of the investigating officers and defendant's possession ofthe prerecorded money. Furthermore, with regard to the cocaine found in the couch, the Peopleproved that defendant exercised dominion and control over the small apartment and the couchwhere the cocaine was seized, which established his constructive possession of it (seePenal Law § 10.00 [8]; People v Manini, 79 NY2d 561, 573 [1992]; People [*3]v Arrington, 31 AD3d 801, 803 [2006], lv denied7 NY3d 865 [2006]).[FN*]Viewing the evidence in the light most favorable to the prosecution, and giving the People thebenefit of every reasonable inference, we find that the People satisfied their burden of provingthat defendant possessed all of the cocaine in issue and acted with the requisite intent to sellwhen he possessed and sold cocaine to the CI on each date in question (see People vAcosta, 80 NY2d 665, 672 [1993]; People v Bleakley, 69 NY2d 490, 495 [1987];People v Contes, 60 NY2d 620, 621 [1983]; People v Elhadi, 304 AD2d 982,982-983 [2003], lv denied 100 NY2d 580 [2003]).
We are also unpersuaded by defendant's challenge to the verdict as contrary to the weight ofthe evidence. While the two eyewitnesses who testified to defendant's sale of narcotics wereknown drug users who had admittedly lied on prior occasions, their credibility was fullyexplored at trial. It was the jury's province to resolve issues of credibility and "[g]reat deferenceis accorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observedemeanor" (People v Bleakley, 69 NY2d at 495; People v Nealon, 36 AD3d 1076, 1077-1078 [2007], lvdenied 8 NY3d 988 [2007]). Importantly, defendant was found with over $1,200 in cash,including the prerecorded buy money. He was identified by all witnesses as the seller and, uponexecution of the search warrant, he was found in close proximity to the drugs, scales and otherdrug paraphernalia. In light of the strength of the evidence against defendant, we are notpersuaded that a different verdict would have been reasonable and find that the jury gave theevidence the weight it should be accorded (see People v Bleakley, 69 NY2d at 495).
Next, we also find to be without merit defendant's argument that the People committedBrady violations which require a reversal. A Brady violation occurs when thePeople fail to disclose evidence favorable to defendant which is exculpatory or may be used forimpeachment purposes (see Brady v Maryland, 373 US 83, 87-89 [1963]; People v Fuentes, 12 NY3d 259,263 [2009]). Such evidence includes any material that would establish a cooperation agreementbetween a witness and the prosecution (see People v Steadman, 82 NY2d 1, 7-8 [1993];People v Novoa, 70 NY2d 490, 496-497 [1987]; People v Tucker, 40 AD3d 1213, 1215-1216 [2007], lvdenied 9 NY3d 882 [2007]). As distinguished from cases involving a complete failure todisclose (see People v Fuentes, 12 NY3d at 263), where, as here, disclosure occurs aftertrial begins, reversal is not required so long as the defense was afforded a meaningfulopportunity to use it to cross-examine the People's witnesses or as evidence-in-chief (seePeople v Cortijo, 70 NY2d 868, 870 [1987]; People v Flagg, 30 AD3d 889, 892 [2006], lv denied 7NY3d 848 [2006]).
Here, after the trial commenced, the CI entered into a cooperation agreement with thePeople—in the presence of defendant's counsel—regarding pending unrelatedcharges. Additionally, defendant became aware, during the cross-examination of the CI, thatanother person who resided at the apartment was a drug dealer, a fact not known to the Peoplebeforehand, according to the prosecution. Despite the timing of these disclosures, it is clear thatthe defense was provided with this information prior to cross-examining the pertinent witnesses.Indeed, the defense failed to establish any prejudice given its meaningful opportunity tocross-examine the witnesses regarding this information and challenge their credibility, as well asuse the information during summation (see People v Fuentes, 12 NY3d at 263;People v Cortijo, 70 [*4]NY2d at 870; People v Swansbrough, 22 AD3d877, 879 [2005]). Defendant's other claimed Brady violations were eitherunsupported, nonexculpatory or of such little impeachment value as to not meet the materialitystandard required to establish a Brady violation (see People v Fuentes, 12 NY3dat 264-265; People v Crandall, 38AD3d 996, 997 [2007], lv denied 9 NY3d 842 [2007]).
Finally, defendant argues that the sentence of nine years for his March 13, 2007 possessionand sale, imposed consecutively to the concurrent sentences on the remaining counts, themaximum of which was 10 years for his March 14, 2007 possession of the cocaine found in thecouch (see Penal Law § 70.70 [2] [a] [i]; § 70.71 [2] [b] [ii]), is undulyharsh and excessive. Upon our careful review, in light of his failure to take any responsibility forhis drug dealing and considering the large quantity of drugs found in his possession as well ashis extensive criminal history spanning over 25 years including numerous convictions fordrug-related crimes, we find no abuse of discretion or extraordinary circumstances that wouldwarrant modification of County Court's lawful sentence (see People v Elliot, 57 AD3d 1095, 1097 [2008], lv denied12 NY3d 783 [2009]; People vRichardson, 28 AD3d 1002, 1005 [2006], lv denied 7 NY3d 817 [2006]).
Kane, Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: The testimony established thatdefendant slept on the mattress next to the couch, and removed drugs from the couch during thesecond sale.