| People v Lee |
| 2009 NY Slip Op 07520 [66 AD3d 1116] |
| October 22, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Gregory Lee,Appellant. |
—[*1]
Stein, J. Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), renderedSeptember 7, 2007, upon a verdict convicting defendant of the crime of criminal sale of acontrolled substance in the third degree (two counts).
On February 11, 2005, Detective Brian Robertson and other members of the Kingston PoliceDepartment, working in conjunction with investigators from the Organized Crime Task Force(hereinafter OCTF), met with a confidential informant (hereinafter CI) who had, on a previousoccasion, indicated that she could purchase crack cocaine from an individual known as "BrightEyes." The Kingston Police Department knew "Bright Eyes" to be an alias used by defendant.After the meeting with the CI, a controlled telephone call was made in the presence of Robertsonand OCTF members, during which the CI arranged to meet defendant to purchase crack cocaine.An undercover OCTF agent accompanied the CI to the arranged location and purchased $200worth of crack cocaine from defendant with prerecorded buy money. Later that evening, the CImade a second controlled telephone call to defendant, seeking to purchase more crack cocaine.The CI and the undercover agent then traveled to a different location, where the undercoveragent purchased $50 worth of crack cocaine from defendant. Both controlled telephone calls andmeetings were recorded and subsequent tests confirmed that the substance purchased fromdefendant each time was positive for the presence of cocaine.[*2]
For various reasons, defendant was not arrested untilApril 9, 2005, following an unrelated traffic stop of a car driven by defendant, during whichcrack cocaine was found in the purse of defendant's passenger. Defendant was thereafter chargedby indictment with various crimes in connection with the April 2005 incident and was latercharged in a separate indictment with criminal sale of a controlled substance in the third degree(two counts) for the two sales of crack cocaine that had allegedly occurred on February 11, 2005.
County Court granted the People's application to try the two indictments together. After theconclusion of the jury trial, defendant was acquitted of all charges involving the April 2005incident, but was convicted on both counts of criminal sale of a controlled substance in the thirddegree for the events that transpired on February 11, 2005. County Court denied a subsequentCPL 330.30 motion to set aside the verdict and sentenced defendant to concurrent prison termsof eight years on each count, followed by three years of postrelease supervision. Defendant nowappeals.
We disagree with defendant's contention that, because the Deputy Attorney General lackedjurisdiction to prosecute him, the appearance of an Assistant Attorney General before the grandjury was unauthorized and requires reversal of his convictions. The record herein establishes theDeputy Attorney General's authority to appear before the grand jury to prosecute a number ofindividuals on various drug crimes (see Executive Law § 70-a [7]; People vRallo, 39 NY2d 217, 222 [1976]; compare People v Fezza, 1 AD3d 808, 809 [2003]). Althoughdefendant was not one of the named individuals with respect to whom the Deputy AttorneyGeneral was granted authority to appear and prosecute, nothing in the record indicates thatAssistant Attorney General Mike Sharpe (who appeared on behalf of the Deputy AttorneyGeneral) was directly involved in the presentation against defendant. Further, our review of thegrand jury minutes also demonstrates—indeed, defendant concedes—that thedetailed evidence presented to the grand jury by the Assistant District Attorney, specifically withregard to defendant's case, was sufficient to sustain the indictment. Under these particularcircumstances, we conclude that, to the extent Sharpe's presentation of general backgroundinformation with regard to drug operations may have been improperly considered by the grandjury in relation to defendant, such presentation did not "rise to the level of impairing the[integrity of the grand jury] proceedings and [did not] creat[e] a likelihood or real potential forprejudice" (People v Moffitt, 20AD3d 687, 689 [2005], lv denied 5 NY3d 854 [2005]). Therefore, dismissal of theindictment is not warranted on this basis (see CPL 210.35 [5]; People v Huston,88 NY2d 400, 409 [1996]; People vMitchell, 55 AD3d 1048, 1050 [2008], lv denied 12 NY3d 856 [2009];People v Moffitt, 20 AD3d at 688-689).
Next, we conclude that County Court properly granted the People's challenge for cause of aprospective juror. Although the prospective juror in question initially indicated during voir direthat the previous prosecution of his brother in Ulster County on a drug-related offense would notaffect his ability to be fair and impartial, upon further questioning, the prospective juror statedthat he felt the police had "[done his] brother wrong," and that he didn't "have a high opinion ofpolice." Taking these comments "in context and as a whole" (People v Chambers, 97NY2d 417, 419 [2002]; see People vShulman, 6 NY3d 1, 27 [2005], cert denied 547 US 1043 [2006]; People v Dunkley, 61 AD3d 428,428 [2009], lv denied 12 NY3d 914 [2009]), we discern no error in County Court'sdetermination that the prospective juror's impartiality might be in doubt, and we find that CountyCourt properly excused the juror (see CPL 270.20 [1] [b]; People v Chambers,97 NY2d at 419; People v Arnold, 96 NY2d 358, 362 [2001]; People v Johnson,94 NY2d 600, 614 [2000]; People vOliveri, 29 AD3d 330, 331 [2006], lvs denied 7 [*3]NY3d 760, 792 [2006]).
Defendant failed to preserve for review his contention that County Court erred in allowingthe undercover agent to testify at trial that a photograph of defendant shown to her before andafter each controlled buy matched the seller, inasmuch as defense counsel referred to the photoidentification in his opening statement and failed to object when the People sought to introduce iton the ground that the door had been opened (see People v Rivera, 31 AD3d 1060, 1061 [2006], lvdenied 7 NY3d 869 [2006]). Nor does admission of the undercover agent's testimonywarrant reversal of defendant's convictions in the interest of justice. Any error was harmless asthe witnesses' identification testimony was otherwise "unequivocal and well grounded" (People v Williams, 11 AD3d 810,811-812 [2004], lv denied 4 NY3d 769 [2005]; see People v Smith, 266 AD2d639, 641 [1999], lv denied 94 NY2d 907 [2000]; People v Cruz, 214 AD2d 952,952-953 [1995], lv denied 86 NY2d 793 [1995]).
We also discern no error in County Court's admission of the recordings of the CI's telephonecalls to defendant to arrange the drug buys. Detective Brian Robertson testified that the twocontrolled telephone calls were made in his presence. While Robertson only heard the CI's end ofthe conversations, he played the tapes back in order to hear the conversations in their entirety.After the original recordings on mini cassette were copied onto audiocassettes by OCTF,Robertson reviewed the audiocassettes and testified that they matched the recordings of theconversations taken on February 11, 2005.[FN*] Such testimony provided a sufficient foundation for the admission of the recordings (seePeople v Ely, 68 NY2d 520, 527-528 [1986]; People v McGee, 49 NY2d 48, 60[1979]; People v Tillman, 57 AD3d1021, 1024 [2008]; United States v McIntosh, 547 F2d 1048 [1977], cert denied 430US 919 [1977]; United States v McMillan, 508 F2d 101, 104-105 [1974], certdenied 421 US 916 [1975]; Chavira Gonzales v United States, 314 F2d 750, 752[1963]). Moreover, the admission of the audiocassettes did not violate the best evidence rule(see Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639, 643 [1994]; Peoplev Hughes, 124 AD2d 344, 346 [1986], lv denied 69 NY2d 828 [1987]).
We reject defendant's contention that he was deprived of the effective assistance of counsel.To the extent that his argument is based on various claimed errors made by counsel, it is eitherbelied by the record or fails to " 'demonstrate the absence of strategic or other legitimateexplanations' for counsel's allegedly deficient conduct" (People v Caban, 5 NY3d 143, 152 [2005], quoting People vRivera, 71 NY2d 705, 709 [1988]). Defendant's claim that his counsel's attention wasdiverted from defendant's case by a pending investigation of attorney misconduct involvesmatters outside the scope of the record and is more appropriately remedied by way of a CPLarticle 440 motion (see People vHutchinson, 57 AD3d 1013, 1014 [2008], lv denied 12 NY3d 817 [2009]).
Furthermore, the record reflects that counsel's opening and closing statements presented areasonable and cogent theory of the case, that he cross-examined the People's witnesses, calleddefendant as a witness on his behalf, moved to dismiss the charges on a reasonable theory afterthe close of the People's case and, notably, secured defendant's acquittal on four of the six countscharged. Under these circumstances, we find that defendant's counsel provided meaningfulrepresentation (see People v Henry, 95 NY2d 563, 566 [2000]; People vBenevento, 91 NY2d [*4]708, 712 [1998]; People vRivera, 71 NY2d at 708; People v Baldi, 54 NY2d 137, 147 [1981]; People vHutchinson, 57 AD3d at 1014; People v Colvin, 37 AD3d 856, 857-858 [2007], lv denied8 NY3d 944 [2007]).
We next address defendant's claim that his right to a speedy trial was violated. It isundisputed that defendant moved by order to show cause for an order fixing bail or, in thealternative, dismissing all charges against him on the ground that his statutory and state andfederal constitutional rights to a speedy trial had been violated. County Court never rendered adecision regarding the speedy trial claims. Although the record reflects that the People declaredtheir readiness for trial within the required six-month period (see CPL 30.30 [1] [a];People v Cortes, 80 NY2d 201, 208 [1992]), it is evident that the trial did not commencewithin that period. However, the record here is insufficient to enable us to determine the extentto which postreadiness periods of delay were attributable to the People—as opposed todefendant (see People v Johnson,42 AD3d 753, 753 [2007], lv denied 9 NY3d 923 [2007])—or to ascertain themerits of defendant's constitutional speedy trial claims. Thus, the matter must be remitted for adetermination by County Court (see People v Reed, 299 AD2d 290, 290 [2002]).
Defendant's argument regarding County Court's failure to give the jury limiting instructionswith regard to evidence of defendant's prior convictions is unpreserved for our review due todefendant's failure to request such instructions or to interpose a timely objection (see People v De Fayette, 16 AD3d708, 709 [2005], lv denied 4 NY3d 885 [2005]; People v Schaefer, 302AD2d 333, 334 [2003], lv denied 100 NY2d 542 [2003]). Nor do we find the existenceof circumstances warranting the exercise of our interest of justice jurisdiction.
Defendant's remaining contention regarding the scope of the cross-examination of Robertsonhas been considered and found to be without merit.
Peters, J.P., Spain, Rose and Kane, JJ., concur. Ordered that the decision is withheld, andmatter remitted to the County Court of Ulster County for further proceedings not inconsistentwith this Court's decision.
Footnote *: He similarly testified that copiesof the transcription of the recordings were accurate depictions thereof.