| People v Caswell |
| 2008 NY Slip Op 02341 [49 AD3d 1257] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v SammyCaswell, Also Known as Pookie, Appellant. |
—[*1] Sammy Caswell, defendant-appellant pro se. James B. Vargason, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Peter E. Corning, J.), rendered May18, 2006. The judgment convicted defendant, upon a jury verdict, of criminal sale of a controlledsubstance in the third degree (two counts) and criminal possession of a controlled substance inthe third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, oftwo counts each of criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]) and criminal sale of a controlled substance in the third degree (§220.39 [1]). Defendant failed to preserve for our review his contention concerning the allegedlegal insufficiency of the evidence (see People v Gray, 86 NY2d 10, 19 [1995]), and wereject defendant's contention that the verdict is against the weight of the evidence, both withrespect to credibility and the elements of the crimes (see generally People v Danielson, 9 NY3d 342, 348-349 [2007];People v Bleakley, 69 NY2d 490, 495 [1987]). Also contrary to defendant's contention,County Court did not abuse its discretion in allowing the jury to view the transcripts of two audiorecordings prepared by police officers with respect to the alleged drug sales (see People vGandy, 152 AD2d 909 [1989], lv denied 74 NY2d 896 [1989]). The court properlyadvised the jury that the transcripts were not necessarily accurate and that it was for the jury todetermine what was said during the recorded conversations (see id.; see also People vHickey, 284 AD2d 929 [2001], lv denied 97 NY2d 656 [2001]). The court also didnot abuse its discretion in admitting the two audio recordings in evidence. The People laid aproper foundation for their admission inasmuch as a police officer testified that he listened to thetransmitted conversations as they were being recorded, he later transferred the recordedconversations to the compact discs played for the jury, and he reviewed the recordings prior totrial to ensure that they were unaltered (see generally People v Ely, 68 NY2d 520, 527[1986]).
The court properly denied defendant's request to present the testimony of a witness whoallegedly would impeach the credibility of the confidential informant who, by the time of trial,had been identified. "It is well established that the party who is cross-examining a witness[, here,[*2]the informant,] cannot . . . call other witnessesto contradict [the informant's] answers concerning collateral matters solely for the purpose ofimpeaching [the informant's] credibility" (People v Pavao, 59 NY2d 282, 288-289[1983]). By failing to object to the court's ultimate Sandoval ruling, defendant failed topreserve for our review his contention that the court's Sandoval ruling constitutes anabuse of discretion (see People vBrown, 39 AD3d 1207 [2007], lv denied 9 NY3d 921 [2007]; People v Alston, 27 AD3d 1141,1141-1142 [2006], lv denied 6 NY3d 892 [2006]), and we decline to exercise our powerto review that contention as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]). The sentence is not unduly harsh or severe. We have reviewed the contentions ofdefendant in his pro se supplemental brief and conclude that they are without merit.Present—Martoche, J.P., Lunn, Fahey, Peradotto and Pine, JJ.