| People v Carter |
| 2015 NY Slip Op 06445 [131 AD3d 717] |
| August 6, 2015 |
| Appellate Division, Third Department |
[*1](August 6, 2015)
| The People of the State of New York, Respondent, vLefonza Carter, Appellant. |
John P.M. Wappett, Public Defender, Lake George (Glenn B. Liebert of counsel), forappellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered November 28, 2012, upon a verdict convicting defendant of the crimes ofcriminal possession of a controlled substance in the third degree (two counts) andcriminal sale of a controlled substance in the third degree (two counts).
Defendant was indicted and charged with two counts each of criminal sale of acontrolled substance in the third degree and criminal possession of a controlled substancein the third degree. The charges stemmed from defendant's sale of crack cocaine on April9, 2012 and April 11, 2012 to a person known to him who was acting as a confidentialinformant (hereinafter CI) for the Warren County Sheriff's Department. On eachoccasion, the CI placed a call to defendant in advance, which was recorded, and the CIthereafter went to a hotel room occupied by defendant in the Village of Lake George,Warren County, where defendant provided the CI with crack cocaine in exchange for$100. During both transactions, the CI wore a transmitter, which allowed lawenforcement officials to listen to the transactions, and also was equipped with abluetooth-like device, which captured an audio and video recording of the sales.Following a jury trial, defendant was convicted as charged and sentenced to an aggregateprison term of 12 years followed by a period of postrelease supervision. This appeal bydefendant ensued.
We affirm. Defendant initially contends that the People violated their obligationunder [*2]Brady by failing to timely discloseimpeachment information regarding the CI—specifically, details concerning herunrelated criminal activity before and after the subject sales and the terms of hercooperation agreement. Brady requires the People "to timely disclose allexculpatory and material evidence, including evidence that could be used to challengethe credibility of a crucial prosecution witness or that would reflect a cooperationagreement between a witness and the prosecution" (People v Williams, 50 AD3d 1177, 1179 [2008] [citationsomitted]; see People vJohnson, 107 AD3d 1161, 1164-1165 [2013], lv denied 21 NY3d 1075[2013]). In order to establish a Brady violation, a defendant must demonstratethat "(1) the evidence is favorable to the defendant because it is either exculpatory orimpeaching in nature; (2) the evidence was suppressed by the prosecution; and (3)prejudice arose because the suppressed evidence was material" (People v Fuentes, 12 NY3d259, 263 [2009]; accordPeople v Garrett, 23 NY3d 878, 885 [2014]; see People v Serrano, 99 AD3d 1105, 1106 [2012], lvdenied 20 NY3d 1014 [2013]). Untimely or delayed disclosure will not prejudice adefendant or deprive him or her of a fair trial where the defense is provided with "ameaningful opportunity to use the allegedly exculpatory material to cross-examine thePeople's witnesses or as evidence during his [or her] case" (People v Cortijo, 70NY2d 868, 870 [1987]; see People v Serrano, 99 AD3d at 1107; People vWilliams, 50 AD3d at 1179).
Here, in response to defendant's general omnibus request for Brady material,the People indicated that a CI had been utilized and compensated for her services; theCI's identity was disclosed in connection with the People's Molineux applicationin September 2012. On Friday, October 12, 2012, with the trial scheduled to begin thefollowing Monday, the People made numerous additional disclosures relative to the CI,including the fact that she had been involved in the sale of hydrocodone in WashingtonCounty in December 2011, that she thereafter agreed to cooperate with Warren Countylaw enforcement officials in exchange for promises that her assistance would be madeknown to prosecutors and that she subsequently was promised that, if she testifiedtruthfully in this matter, she would not be criminally charged for the 2011 prescriptiondrug sale. On the morning of the first day of trial, the People additionally disclosed,among other things, the CI's history of drug use and prior sales/purchases of drugs, aswell as the fact that the CI, who then was incarcerated due to her failure to pay certaincriminal fines, received an extra piece of crack cocaine from defendant during the April9, 2012 sale, which she secreted and did not turn over to the police. The defense also wasinformed that the CI was involved in an unauthorized sale of crack cocaine in herapartment in May 2012, during which another informant made a controlled buy, and thatthe CI later testified before the grand jury in that matter. At the conclusion of the first dayof trial, the People turned over the video recording of the May 2012 drug sale and theCI's related grand jury testimony.
Although County Court denied defendant's motion to dismiss the indictment in theinterest of justice as a sanction for the delayed disclosure, the court ordered the People tomake available to the defense the informant-buyer involved in the May 2012 sale and,further, to delay calling the CI to testify in order to allow the defense time to prepare.Consistent with that directive, the CI was not called by the People to testify until Friday,October 19, 2012, and her direct testimony extended into the followingMonday—a full week after the last disclosure. At that point, the CI was subject toin-depth cross-examination, during the course of which she was meticulously impeachedon all of the foregoing matters and admitted that she had lied to the grand jury regardingher activities during the May 2012 sale. Finally, the full terms of and circumstancessurrounding the underlying cooperation agreement were elicited in detail, allowing thejury to assess the CI's credibility (compare People v Steadman, 82 NY2d 1, 7-8[1993]; [*3]People v Novoa, 70 NY2d 490,496-498 [1987]).[FN1]
As the record establishes that the defense had a meaningful opportunity to reviewand effectively use the impeachment materials, we are satisfied that no prejudice resultedfrom the delayed disclosure (see People v Cortijo, 70 NY2d at 870; People vSerrano, 99 AD3d at 1107; People v Burroughs, 64 AD3d 894, 898 [2009], lvdenied 13 NY3d 794 [2009]). Further, under these circumstances, we find that thereis no "reasonable probability" that, had the impeachment material been timely disclosed,the verdict would have been different (People v Garrett, 23 NY3d at 891;accord People v Fuentes, 12 NY3d at 263). Accordingly, reversal upon thisground is not warranted.
We reach a similar conclusion regarding the People's failure to preserve the originaldigital recordings of the set-up calls and drug transactions. "[T]he prosecution is under aduty to diligently preserve all materials which may be subject to disclosure" until arequest for disclosure is made (People v Close, 103 AD2d 970, 971 [1984];see People v Kelly, 62 NY2d 516, 520 [1984]; People v Gomez-Kadawid, 66AD3d 1124, 1125 [2009]), and there is no dispute that these recordings werediscoverable (see CPL 240.20 [1] [g]; People v Carpenter, 88 AD3d 1160, 1161 [2011]). In thisinstance, however, the testimony of members of the Warren County Sheriff's Departmentestablished that all of the audio and visual digital information recorded on the deviceworn by the CI during both sales, as well as the audio of the set-up calls, wasimmediately transferred to a computer—without alteration or deletion—andthen copied to computer discs, which thereafter were provided to the defense. Only afterthe transfer of the original and complete digital recordings to the computer was theinformation removed from the recording device, so that such device could be reused.Thus, contrary to defendant's claims, the recorded digital information was never"destroyed" but, rather, was downloaded and transferred from one device to another, andthe record reflects that he received an exact replica of the digital recordings (seePeople v Burroughs, 64 AD3d at 896-897; compare People v Saddy, 84AD2d 175, 178-179 [1981]). Moreover, even assuming that we were to find that theprocedures employed here violated the People's disclosure obligations, there was neithera showing of bad faith by the officers nor any demonstrable prejudice to defendant so aswarrant a sanction (see CPL 240.70 [1]; People v Carpenter, 88 AD3d at1161; compare People v Saddy, 84 AD2d at 179-180).
Likewise, we find that County Court properly admitted into evidence the videorecordings of the April 9, 2012 and April 12, 2012 controlled buys. "The decision toadmit videotape evidence rests within the sound discretion of the trial court and will notbe disturbed absent a lack of foundation for its introduction or a demonstrated abuse ofthe court's discretion" (People vBoyd, 97 AD3d 898, 899 [2012], lv denied 20 NY3d 1009 [2013][citation omitted]). Here, the videos of both sales were authenticated by the CI, whodirectly participated in the buys, identified defendant in court as the seller and, afterviewing the videos, confirmed that voices on the recordings were hers and that ofdefendant and, further, that such recordings accurately and [*4]fairly depicted the underlying events (see People vMcGee, 49 NY2d 48, 59-60 [1979]; People v Junior, 119 AD3d 1228, 1231 [2014], lvdenied 24 NY3d 1044 [2014]; People v Lee, 80 AD3d 1072, 1073-1074 [2011], lvdenied 16 NY3d 832 [2011]). Additionally, Jeff Gildersleeve, an investigator withthe Warren County Sheriff's Department who conducted surveillance of both controlleddrug buys from across the street, testified that he observed the CI enter and exit the hotel,overheard the subject sales via the transmitter, identified the voices he heard asbelonging to the CI and defendant and attested to the accuracy of the events as portrayedon the relevant recordings. Kevin Clark, also a member of the Warren County Sheriff'sDepartment, oversaw the operation of the recording devices and their duplication andattested to the accuracy of the audio and video recordings of the controlled buys. In lightof the foregoing, we are satisfied that the People laid a proper foundation for theadmission of the recordings at issue.
Defendant's challenge to the accuracy of the recording of the April 9, 2012sale—namely, that the recording ends before the CI secreted the extra piece ofcrack cocaine that defendant had given her—lacks merit, as both Gildersleeve andthe CI testified to her actions and attested to the accuracy of the video. With regard to therecording of the April 11, 2012 sale, although the audio and video components were notsynchronized, the testimony at trial established that the recording accurately andcompletely depicted what had occurred (cf. People v Boyd, 97 AD3d at 899).Finally, we discern no error in the admission of an edited video of the sales created byJason Cooper, a member of the State Police video forensic unit, who explained that heused a software audio filter to improve the sound quality and synchronize the recordingof the April 11, 2012 sale. Although Cooper acknowledged that he shortened therecording for demonstrative purposes to include only the portion where the CI was in thehotel room, he also verified that he had not altered the content of the previouslyauthenticated recordings. Thus, we are satisfied that no error occurred in the admission ofthe recordings.
Nor do we find merit to defendant's claimed Molineux violation. During thecross-examination of Gildersleeve regarding the surveillance of these sales, defensecounsel questioned why plainclothes officers had not been deployed to secure the hoteland check for drugs in advance of the controlled buys. In response, Gildersleeveindicated that defendant knew "some of our officers" from "other encounters. . . with him in other hotels"; when pressed as to whether defendant knew"every single person employed by the Warren County Sheriff['s] Department,"Gildersleeve reiterated that undercover officers in his unit "had other encounters" withdefendant. We find that County Court properly denied defendant's motion to strikeGildersleeve's answers, as they were responsive to the questions posed by defensecounsel (not the People), were not gratuitously volunteered and made no specificreference to prior drug sales. In short, inasmuch as the testimony completed the narrativesupplied by Gildersleeve and provided context for his testimony, we find that it wasproperly admitted (see People vRivera, 124 AD3d 1070, 1073 [2015]; People v Malak, 117 AD3d 1170, 1175 [2014], lvdenied 24 NY3d 1086 [2014]).
We next turn to defendant's contention that County Court erred in admitting intoevidence the evidence bags containing the cocaine turned over by the CI after each of thesales because the cocaine was in an altered condition. In order to establish theadmissibility of real evidence, such as the actual crack cocaine involved in a drug sale,the People are required to establish its authenticity by showing "first, that the evidence isidentical to that involved in the crime[,] and, second, that it has not been tampered with"(People v Julian, 41 NY2d 340, 342-343 [1977]; see People v Danford, 88AD3d 1064, 1066 [2011], lv denied 18 NY3d 882 [2012]). One acceptablemethod of authenticating fungible items, such as bags containing white powder, is toestablish a chain of custody (see People v Julian, 41 NY2d at 343; People vDanford, 88 AD3d at 1067; People v Gilmore, 72 AD3d 1191, 1192-1193[2010]).
[*5] Here, the CI testified that, as soonas she exited the hotel after each controlled buy, she turned the substance purchased overto Clark; Clark, in turn, testified that he field tested the relevant substances and placedthem in sealed, signed and dated evidence bags, which were stored in the evidencelocker. Additionally, the evidence custodian for the Warren County Sheriff's Departmenttestified to the procedures in place for securing and handling evidence, indicated thatsuch procedures were followed in this case and described his transportation of theevidence to and from the evidence locker and the State Police crime laboratory. Inaddition, the People presented the testimony of the State Police forensic scientist whoreceived, tested, weighed and secured the evidence, and she testified that the evidenceadmitted at trial was in the same condition as when she examined it. Based upon suchtestimony, we find that the People established a sufficient chain of custody of the crackcocaine sold by defendant, and any gaps in the chain of custody "go to the weight of theevidence, not its admissibility" (People v Hawkins, 11 NY3d 484, 494 [2008]; seePeople v Gilmore, 72 AD3d at 1193; People v Bellamy, 34 AD3d 937, 939 [2006], lvdenied 8 NY3d 843 [2007]).
To the extent that defendant argues that the disparity in the weights recorded for thecocaine—initially by the Warren County Sheriff's Department and later by theState Police—impaired the integrity of that evidence and established that it hadbeen altered, we disagree.[FN2] The noted disparity was fully explainedby the testimony at trial, which established that the Warren County Sheriff's Departmentscale was not calibrated; hence, ascertaining an accurate weight of the submittedsubstances was a matter left to the State Police laboratory to determine. In this regard, aState Police forensic scientist testified that the scales used in their laboratory werecalibrated and tested for accuracy. Thus, the disparity was a matter relevant to thepersuasiveness of the evidence, not its admissibility (see People v Gilmore, 72AD3d at 1193). As the People provided "the necessary reasonable assurances of theidentity and unchanged condition of the drugs to authenticate that evidence," CountyCourt properly admitted the bags of cocaine into evidence (People v Danford, 88AD3d at 1067; see People v Hawkins, 11 NY3d at 494; People v Chappelle, 126 AD3d1127, 1128 [2015], lv denied 25 NY3d 1161 [2015]). Defendant's remainingcontentions, to the extent not specifically addressed, have been examined and found to belacking in merit.
McCarthy, J.P., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Even assuming that theCI's telephone calls from the local jail to the Assistant District Attorney, which wererecorded by jail staff, were under the control and possession of the People and subject todisclosure pursuant to Brady (cf. People v Lewis, 125 AD3d 1109, 1111 [2015]), theaudio recordings were made available on October 17, 2012 (prior to the CI's testimony),thereby affording defendant a meaningful opportunity to use the recordings to impeachthe CI during cross-examination.
Footnote 2:The weight of thecocaine was not an element of any of the charged crimes (see Penal Law§§ 220.16 [1]; 220.39 [1]).