| People v Johnson |
| 2017 NY Slip Op 05272 [151 AD3d 1462] |
| June 29, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Tyrone L. Johnson, Appellant. |
Mark Diamond, Albany, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Timothy Blatchley of counsel), forrespondent.
Garry, J.P. Appeal from a judgment of the County Court of Clinton County (Ryan, J.),rendered February 19, 2014, upon a verdict convicting defendant of the crimes of criminal sale ofa controlled substance in the third degree (two counts) and criminal possession of a controlledsubstance in the third degree (two counts).
Defendant sold crack cocaine to a confidential informant (hereinafter CI) in two controlledbuys in 2012. Thereafter, he was charged by indictment with two counts of criminal sale of acontrolled substance in the third degree and two counts of criminal possession of a controlledsubstance in the third degree. Following a jury trial, he was convicted as charged. County Courtsentenced defendant to an aggregate prison term of 14 years, followed by four years ofpostrelease supervision, and ordered him to pay $600 in restitution to the Clinton County DistrictAttorney's office, with surcharges and fees. Defendant appeals.
Initially, we reject defendant's contention that audio recordings of the alleged drugtransactions were inaudible and that the jury therefore gave undue weight to transcriptionsprepared by the People. Whether a recording is audible is "a preliminary issue to be determinedby County Court in the exercise of its discretion" (People v Rostick, 244 AD2d 768, 768[1997], lv denied 91 NY2d 929 [1998]). An audio recording is inadmissible only when itis so muffled or indistinct that a jury cannot discern its contents without speculation.Admissibility is favored, and a partially inaudible recording will be admitted "so long as thetransactions can be generally [*2]understood by the jury, [inwhich case] such infirmities go to the weight of the evidence and not to its admissibility" (People v Lewis, 25 AD3d 824, 827[2006], lv denied 7 NY3d 791 [2006]; see People v McCaw, 137 AD3d 813, 815 [2016], lv denied27 NY3d 1071 [2016]; People v Rivera, 257 AD2d 172, 176 [1999], affd 94NY2d 908 [2000]). Our review of the recordings reveals that, although background noise makessome portions inaudible, the remainder is sufficiently clear and intelligible to permit the jury tounderstand the contents without resorting to conjecture. As to the transcripts, County Courtrepeatedly instructed the jury that parts of the recordings might be inaudible, that the transcriptswere not evidence and represented the People's version of what was said, and that it was for thejury to draw its own conclusions as to the correct interpretation of the recordings and the weight,if any, to give to them (see People vMorris, 32 AD3d 561, 562 [2006], lv denied 7 NY3d 869 [2006]; People vMitchell, 220 AD2d 813, 814 [1995], lv denied 87 NY2d 905 [1995]). Accordingly,we find no abuse of discretion in the admission of the recordings or the use of thetranscripts.
Next, defendant contends that the verdict is not supported by legally sufficient evidence andis against the weight of the evidence. We disagree. The investigator who conducted thecontrolled buys testified that she had been employed with the State Police for over 11 years, hadconducted over 300 controlled buys and had assisted on hundreds more. She stated that the CIhad performed approximately 20 buys and that she considered him to be credible and reliable.She was assisted on both buys by another State Police investigator. Their trial testimony and thatof the CI established that the CI contacted the investigators and told them that he could arrange acontrolled buy to purchase crack cocaine from defendant at a specified location in ClintonCounty. The investigators met with the CI, who told them that defendant had changed the buylocation at the last minute, a technique that was, according to the investigators, commonly usedby drug sellers to avoid surveillance. The investigators searched the CI, hisstepfather—who was providing the CI with transportation—and the stepfather'svehicle, and found no contraband. The CI was then provided with funds for the purchase as wellas audio equipment that would record the transaction and permit the investigators to listen as itoccurred.
The stepfather transported the CI to the agreed meeting location. While monitoring eventsthrough the audio equipment, the investigators followed and parked nearby. Defendant waslate—another technique that the investigators stated was often used to avoidsurveillance—and the stepfather and the CI left the scene briefly to look for him beforereturning. The investigators saw defendant arrive on foot and took several photographs of him.The CI gave the cash to defendant after they met, and they were then approached by an unknownthird party. This "spooked" defendant, according to the CI; he and the CI then got into thestepfather's car and drove to another public location, where they separated briefly and, thereafter,traveled together to the CI's residence. The investigators followed and parked nearby. The CI, thestepfather and defendant entered the garage, where the investigators could not see them butlistened to the transaction through the audio equipment.
The testimony of the CI and the stepfather, supported by the audio recording, established thatthe CI and defendant had a brief conversation in which they decided to apply part of the cash to adebt that the CI owed to defendant. Defendant then took several packages known as tie-offs fromhis pocket, gave two of them—containing what later proved to be crack cocaine—tothe CI, and gave a third to the stepfather. The CI then met the investigators and gave them thetie-offs and the recording equipment; the investigators searched him again and found nocontraband.
Several weeks later, the CI and the stepfather arranged a second controlled buy in which theCI planned to meet defendant at the CI's residence to purchase two grams of crack cocaine. [*3]As before, the investigators searched the CI, his girlfriend, who wasproviding the transportation, and the girlfriend's vehicle, and found no contraband. Theyprovided the CI with audio recording equipment and cash, including the drug purchase moneyand some reimbursement for related expenses for his phone and gasoline.[FN*] The investigators then followedthe CI to his residence. Once again, defendant was late. When he eventually arrived, the CI methim outside. He and the CI then went into the residence, where the stepfather and others werepresent. Defendant and the CI then entered the stepfather's bedroom, where, according to the CI,they agreed after some negotiations that part of the funds would be applied to the CI's debt andpart used to purchase a single gram of crack cocaine. After the transaction, the CI and hisgirlfriend met with the investigators and were searched; only the remaining balance of the moneythat they had given to the CI was found. The CI turned over the audio equipment and one tie-offcontaining crack cocaine.
Defendant argues that the investigators did not witness the drug transactions, and that theonly eyewitnesses—the CI and the stepfather—are unworthy of belief. We disagree.The CI did acknowledge that he began acting as a CI in an effort to reduce his sentence afterbeing charged with a crime and that charges were pending at the time of the controlled buys. Hefurther acknowledged his significant criminal history and former addiction to narcotics. Thestepfather likewise acknowledged his own long criminal history and that he was using drugs atthe time of the controlled buys. However, these issues were thoroughly explored uponcross-examination, and the credibility questions that they presented were for the jury to resolve(see People v Rodriguez, 121 AD3d1435, 1441 [2014], lv denied 24 NY3d 1122 [2015]; People v Self, 75 AD3d 924, 926[2010], lv denied 15 NY3d 895 [2010]). We find that the evidence pertaining to bothtransactions was legally sufficient to support defendant's convictions (see People v Nicholas, 130 AD3d1314, 1315-1316 [2015]; People vGibson, 121 AD3d 1416, 1417-1418 [2014], lv denied 24 NY3d 1119 [2015]).Further, upon review, we do not find the verdict to be against the weight of the evidence (seePeople v Gibson, 121 AD3d at 1418; People v Tisdale, 103 AD3d 987, 988 [2013], lv denied 21NY3d 1010 [2013]).
Next, defendant contends that he was denied a fair trial by several instances of prosecutorialmisconduct during the People's summation and, further, that he was deprived of the effectiveassistance of counsel by defense counsel's failure to object to the allegedly improper remarks. Asthere were no objections to the challenged comments when they were made, defendant'sprosecutorial misconduct claims are unpreserved (see People v Rivera, 124 AD3d 1070, 1074-1075 [2015], lvdenied 26 NY3d 971 [2015]; Peoplev Green, 119 AD3d 23, 30 [2014], lv denied 23 NY3d 1062 [2014]). We do notfind that corrective action in the interest of justice is warranted, as most of the challengedcomments were made in response to defendant's summation or constituted fair comment on theevidence and, if any of the remarks were improper, they "were not so pervasive or flagrant as torequire a reversal" (People vMcCall, 75 AD3d 999, 1002 [2010], lv denied 15 NY3d 894 [2010]; accord People v Fomby, 101 AD3d1355, 1357 [2012]). Defendant's ineffective assistance claim is thus unavailing, as it ispremised solely upon his counsel's failure to object to the challenged comments, and any suchobjections would have "ha[d] little or no chance of success" (People v Caban, 5 NY3d 143, 152 [2005] [internal quotation marksand citation omitted]; accord People vGokey, 134 AD3d 1246, 1247 [2015], lv denied 27 NY3d 1069 [2016]; see People v Vargas, 60 AD3d1236, 1239 [2009], lv denied 13 NY3d 750 [2009]).
[*4] Defendant next contends that his sentence is harsh andexcessive. In view of his history of many prior crimes involving drugs and weapons and multiplerevocations of probation and parole, we find no abuse of discretion or extraordinarycircumstances warranting modification (see People v Taylor, 126 AD3d 1120, 1122 [2015], lvdenied 25 NY3d 1172 [2015], cert denied 577 US &mdash, 136 S Ct 1172 [2016]).Finally, defendant's appellate challenge to the restitution award is unpreserved, as he neitherrequested a restitution hearing nor objected to the amount imposed (see People v Horne,97 NY2d 404, 414 n 3 [2002]; People vShannon, 139 AD3d 1250, 1250 [2016], lv denied 28 NY3d 974 [2016]). As theamount awarded is supported by the People's request, the recommendation in the presentenceinvestigation report and the record evidence, modification in the interest of justice is unwarranted(see Penal Law § 60.27 [2]; People v Goldman, 139 AD3d 1111, 1113 [2016], lv denied28 NY3d 970 [2016]).
Lynch, Rose, Clark and Aarons, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:The CI and the investigatorstestified that, other than such reimbursement, the CI was not paid for his work.