| People v Gilmore |
| 2010 NY Slip Op 02873 [72 AD3d 1191] |
| April 8, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Jamar F. Gilmore, Also Known as Cool,Appellant. |
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Stein, J. Appeal from a judgment of the County Court of Cortland County (Campbell, J.),rendered November 17, 2006, upon two verdicts convicting defendant of the crimes of criminalpossession of a controlled substance in the fourth degree and criminal sale of a controlledsubstance in the third degree (two counts).
Defendant was indicted on one count of criminal possession of a controlled substance in thefourth degree (hereinafter the first indictment) based upon his possession of cocaine onDecember 2, 2005. He was subsequently indicted on two counts of criminal sale of a controlledsubstance in the third degree (hereinafter the second indictment) arising out of his sale of cocaineon January 16, 2006. Defendant was convicted of all charges after two separate jury trials and henow appeals.[FN*]Finding no merit to defendant's various arguments on appeal, we affirm.
Initially, we find that County Court properly denied defendant's motion for aMapp/Dunaway hearing under the first indictment as the motion failed to set forth anysworn allegations of fact supporting the grounds for the application (see CPL 710.60 [1];People v [*2]Lopez, 5 NY3d 753, 754 [2005]; People vMendoza, 82 NY2d 415, 422 [1993]).
Nor do we find error in County Court's admission of the cocaine into evidence in the trialpertaining to the first indictment. Contrary to defendant's contention, the People established asufficient chain of custody of the cocaine allegedly possessed by him. According to thetestimony of patrolman Eric Nilsson, after defendant was taken into custody, Nilsson conducteda pat search of defendant's person, during which "a clear plastic container fell on the floor" asNilsson shook defendant's pants. At trial, Nilsson confirmed that the cocaine offered in evidencewas "the stuff that fell out of [defendant's] pant leg" during the pat search. The testimony ofLieutenant Paul Sandy also described the procedures in place at the police department forsecuring and handling evidence and established that those procedures were followed in this case.Sergeant Michael Nichols then testified regarding his transportation of the evidence from thepolice station to the State Police crime laboratory. In addition, the People presented thetestimony of John Pierce, a forensic scientist with the State Police, regarding the handling andtesting procedures followed once the evidence was received by the crime lab.
Taken as a whole, the testimony amply demonstrates "that there existed 'reasonableassurances of identity and unchanged condition' " (People v Julian, 41 NY2d 340, 343[1977], quoting People v Porter, 46 AD2d 307, 311 [1974]) of the substance offered inevidence at trial so as to establish that it was cocaine and that it was secured from defendant.Thus, County Court properly admitted the cocaine into evidence (see People v Julian, 41NY2d at 343; People v Harris, 29AD3d 1027, 1028 [2006]). Defendant's assertions that the chain of custody was broken bycertain gaps in time when the evidence was allegedly unaccounted for and that the integrity ofthe evidence was impaired by differences in weight before and after the substance was testedrelate to the persuasive effect to be accorded to the evidence by the trier of fact, not to itsadmissibility (see People vBellamy, 34 AD3d 937, 939 [2006], lv denied 8 NY3d 843 [2007]; People v Valderama, 25 AD3d819, 820 [2006], lv denied 6 NY3d 854 [2006]).
Turning to the second indictment, defendant contends that the People's failure to complywith the notice requirements of CPL 710.30 regarding their intent to offer identificationtestimony at trial requires reversal of his convictions. It is well established that identificationprocedures that are merely confirmatory do not trigger the notice requirements of CPL 710.30(see People v Trimmer, 30 AD3d820, 822 [2006]; People vDuplessis, 16 AD3d 846, 848 [2005], lv denied 4 NY3d 853 [2005]). Moreover,"eyewitness testimony of a defendant's participation in a crime where the eyewitness has notpreviously made any out-of-court, police-initiated identification of the defendant in connectionwith that crime does not require a CPL 710.30 notice" (People v Butler, 16 AD3d 915,916 [2005], lv denied 5 NY3d 786 [2005]).
Here, Sergeant Fred Whitsett testified at trial that he came into close contact with defendantseveral times on December 2, 2005. He further testified that he observed defendant take part inthe sale of a controlled substance on February 2, 2006 and then identified defendant at trial as theperson he had observed on that date. Whitsett's in-court identification of defendant was based onhis February 2, 2006 observation which, in turn, was predicated upon his December 2, 2005identification. Whitsett never participated in any police-initiated identification procedures, suchas a showup or lineup, following his contact with defendant on December 2, 2005. Therefore, theCPL 710.30 notice requirement was inapplicable and County Court properly permitted Whitsettto testify as to his interactions with defendant and to identify him in court (see People vWhite, 73 NY2d 468, 474 [1989], cert denied 493 US 859 [1989]).[*3]
Defendant's final contention—that he receivedineffective assistance of counsel in the defense of the second indictment—is alsounavailing. This contention is almost entirely premised upon defense counsel's failure todiscover, until the week before the commencement of the trial, that the People were inpossession of incriminating surveillance videotapes of the undercover buy operation. We notethat defendant's self-serving allegation—that had he known sooner of the existence of suchevidence he would have accepted the People's original plea offer—is insufficient toestablish that he would have done so (see People v Thomson, 46 AD3d 939, 941 [2007], lvdenied 9 NY3d 1039 [2008]). In addition, it is evident from the record that, upon learning ofthe existence of the surveillance tapes a few days before trial, defendant made no inquiry as towhether the initial plea offer—or even any comparable offer—was still available.Significantly, when defense counsel became aware of the tapes, he made an appropriate motionto suppress them. Likewise, defense counsel made other apposite motions, requests for hearingsand trial objections and conducted competent cross-examination of witnesses. Upon our reviewof the record, the totality of the circumstances in this case leads us to conclude that defendantreceived meaningful representation in accordance with constitutional requirements (seePeople v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137,146-147 [1981]; see also People vStultz, 2 NY3d 277, 283 [2004]).
Mercure, J.P., Spain, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Although there were twoseparate trials, there was only one judgment of conviction.