| People v Arce-Santiago |
| 2017 NY Slip Op 07485 [154 AD3d 1172] |
| October 26, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jean C. Arce-Santiago, Appellant. |
Thomas F. Garner, Middleburgh, for appellant, and appellant pro se.
Kelli P. McCoski, District Attorney, Fonda (Lorraine C. Diamond of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Montgomery County (Catena,J.), rendered July 22, 2014, upon a verdict convicting defendant of the crimes of criminal sale ofa controlled substance in the third degree (three counts) and criminal possession of a controlledsubstance in the third degree (three counts).
Defendant was indicted for criminal sale of a controlled substance in the third degree (threecounts) and criminal possession of a controlled substance in the third degree (three counts)stemming from his alleged sale of heroin to a confidential informant (hereinafter CI) on August27, 2013, August 28, 2013 and September 4, 2013. On each occasion, the CI placed a call todefendant in advance and was thereafter transported by law enforcement officials to theagreed-upon buy location, where defendant provided the CI with heroin in exchange for markedbuy money. During all three transactions, the CI wore a transmitter that enabled the investigatingofficers to listen to and capture an audio recording of the sales. Following a jury trial, defendantwas convicted as charged and sentenced, as a second felony drug offender, to concurrent prisonterms of 10 years on each count to be followed by three years of postrelease supervision.Defendant appeals.
We find no merit to defendant's claim that the People failed to establish a sufficient chain ofcustody for the heroin obtained from the controlled buys. Testimony established that, after eachtransaction, the CI ceded the substance purchased to Leon Pratt, a police detective with the Cityof Amsterdam Police Department. Pratt testified that, on each of the three occasions, he [*2]transported the substance to the police station, where it was fieldtested,[FN*] and then placedthe substance in a sealed and dated evidence bag that was stored in the evidence locker. Theevidence custodian for the City of Amsterdam Police Department described his transportation ofthe evidence from the August 27 and 28, 2013 controlled buys to and from the evidence lockerand the State Police crime laboratory. While this witness did not personally transport theevidence secured from the September 4, 2013 controlled buy to the crime laboratory, heconfirmed that, when he picked up the sealed evidence bag to return it to the evidence locker, itwas in the same condition as it was prior to being transferred to the crime laboratory. In addition,the People presented the testimony of the State Police forensic scientist who received, tested,weighed and secured the heroin, and she explained that the evidence admitted at trial was in thesame condition as when she examined it. Such testimony, taken as a whole, provides the requisite"reasonable assurances of the identity and unchanged condition of the drugs to authenticate thatevidence" (People v Danford, 88AD3d 1064, 1067 [2011], lv denied 18 NY3d 882 [2012]; see People vJulian, 41 NY2d 340, 343 [1977]; People v Carter, 131 AD3d 717, 723 [2015], lv denied 26NY3d 1007 [2015]; People vGilmore, 72 AD3d 1191, 1192-1193 [2010]), and any purported gaps or weaknesses inthe chain of custody "go to the weight of the evidence, not its admissibility" (People v Hawkins, 11 NY3d 484,494 [2008]; accord People v Carter, 131 AD3d at 723; see People v Bellamy, 34 AD3d937, 939 [2006], lv denied 8 NY3d 843 [2007]). Thus, County Court properlyadmitted the heroin into evidence.
Nor are we persuaded that defendant was deprived of a fair trial as a result of a singleinstance in which County Court interjected itself into the proceeding. A trial court "is permittedto raise matters on its own initiative in order to elicit significant facts, clarify or enlighten anissue or to facilitate the orderly and expeditious progress of the trial" (People v Lupo, 92 AD3d 1136,1138 [2012] [internal quotation marks and citation omitted]; see People v Yut Wai Tom,53 NY2d 44, 57 [1981]). "However, because the court's principle function is to protect therecord, not to make it, such power must be exercised sparingly, without partiality, bias orhostility, as excessive interference or the suggestion of an opinion on the part of the trial judgemight well prove decisive in the minds of the jury" (People v Byrd, 152 AD3d 984, 988 [2017] [internal quotationmarks, brackets and citations omitted]; see People v Kocsis, 137 AD3d 1476, 1481 [2016]).
Here, County Court suspended the testimony of a witness and engaged in a relatively briefcolloquy with the prosecutor and defense counsel concerning a chain of custody issue. The [*3]discussion was conducted outside the presence of the jury, therebyforeclosing any possibility that the court's interference would unduly influence the jury (seePeople v Byrd, 152 AD3d at 988; compare People v Yut Wai Tom, 53 NY2d at57-58; People v Kocsis, 137 AD3d at 1481). Moreover, inasmuch as an adequate chain ofcustody had already been established for the heroin at issue, it cannot be said that the court'sdecision to permit the People to call an additional witness to address a purported gap in the chaincreated a tactical advantage for the People (see People v Vazquez, 145 AD3d 1268, 1271 [2016]; People v Adams, 117 AD3d 104,109 [2014], lv denied 24 NY3d 1000 [2014]). Upon our review of the record, we find nobasis upon which to conclude that County Court was biased against defendant or that the court'sinterference served to deprive him of a fair trial (see People v Byrd, 152 AD3d at 988;People v Lupo, 92 AD3d at 1138; People v Tucker, 140 AD2d 887, 891 [1988],lv denied 72 NY2d 913 [1988]; compare People v Kocsis, 137 AD3d at1481).
The verdict is supported by legally sufficient evidence and is not contrary to the weight of theevidence. Testimony provided by the CI and the various law enforcement officials—whostrip-searched the CI before and after each of the subject transactions, provided him with buymoney, transported him to the buy locations and observed portions of the drugtransactions—together with the audio recordings of the buys and the positive test results,establish a valid line of reasoning and permissible inferences from which the jury could rationallyconclude that defendant knowingly and unlawfully possessed and sold narcotics on three separateoccasions (see Penal Law §§ 220.16 [1]; 220.39 [1]; People v Gibson, 121 AD3d 1416,1417 [2014], lv denied 24 NY3d 1119 [2015]; People v Ebron, 90 AD3d 1243, 1244 [2011], lv denied 19NY3d 863 [2012]; People vChatham, 55 AD3d 1045, 1046 [2008], lv denied 14 NY3d 839 [2010]). Whiledefendant argues that the testimony of the CI—the only witness to identify him as theindividual who sold the heroin—should be accorded little, if any, weight due to the factthat the CI was an admitted drug addict and agreed to assist authorities in an effort to obtainfavorable treatment with regard to certain outstanding criminal charges against him, these issueswere fully explored at trial and presented credibility questions for the jury to resolve (see People v Johnson, 151 AD3d1462, 1465 [2017]; People vBoyd, 135 AD3d 1163, 1163 [2016], lv denied 27 NY3d 963 [2016]; Peoplev Gibson, 121 AD3d at 1418; People v Vargas, 72 AD3d 1114, 1118 [2010], lv denied 15NY3d 758 [2010]). According the requisite deference to those credibility assessments andviewing the evidence in a neutral light (see People v Danielson, 9 NY3d 342, 348-349 [2007]), we aresatisfied that the verdict is supported by the weight of the evidence (see People v Boyd,135 AD3d at 1163-1164; People v Gibson, 121 AD3d at 1418; People v Tisdale, 103 AD3d 987,988 [2013], lv denied 21 NY3d 1010 [2013]).
Finally, we are unpersuaded by defendant's contention that his sentence is harsh andexcessive. In sentencing defendant to six concurrent terms of 10 years in prison, County Courtimposed an aggregate sentence significantly less than the maximum potential consecutivesentences authorized for these crimes (see Penal Law §§ 70.25 [2];70.70 [3] [b] [i]) after considering relevant factors, including defendant's prior drug-relatedconviction and refusal to accept responsibility for his actions. Further, there is no support in therecord for defendant's claim that he was punished for rejecting a plea offer of eight years inprison and exercising his right to trial (see People v Collier, 146 AD3d 1146, 1152 [2017], lvdenied 30 NY3d 948 [Sept. 4, 2017]; People v Lee, 129 AD3d 1295, 1300 [2015], lv denied 27NY3d 1001 [2016]). Finding neither an abuse of discretion by County Court nor extraordinarycircumstances warranting modification, we decline to disturb the sentence imposed (see People v Gethers, 151 AD3d1398, 1402 [2017]; People v Lee, 129 AD3d at 1300; People v Gibson, 121AD3d at 1419).
McCarthy, Rose, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant failed to preserve hisclaim that the admission of the field test results through the testimony of Pratt violated his rightsunder the Confrontation Clause (see People v Kello, 96 NY2d 740, 743 [2001]; People v Cade, 110 AD3d 1238,1240-1241 [2013], lv denied 22 NY3d 1155 [2014]; People v Snyder, 91 AD3d 1206, 1213 [2012], lv denied 19NY3d 968 [2012], cert denied 568 US 1070 [2012]; People v McMillon, 77 AD3d 1375, 1375-1376 [2010], lvdenied 16 NY3d 897 [2011]). To the extent that defendant objected to the admission of suchtestimony on the ground of impermissible hearsay, any error was harmless in light of thetestimony of the State Police forensic scientist (see infra) who independently tested thesubstances at issue and concluded that they were, in fact, heroin (see People v Kello, 96NY2d at 744; see generally People v Crimmins, 36 NY2d 230, 240-241 [1975]).