| People v Gray |
| 2008 NY Slip Op 10366 [57 AD3d 1473] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Gary Gray,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas M. Van Strydonck, J.),rendered May 9, 2005. The judgment convicted defendant, upon a jury verdict, of criminal possessionof a controlled substance in the first degree, criminal possession of a controlled substance in the thirddegree, criminal possession of a controlled substance in the fifth degree, criminal possession of acontrolled substance in the seventh degree and unlawful possession of marihuana.
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 of, inter alia,criminal possession of a controlled substance in the first degree (Penal Law § 220.21 [former(1)]). Contrary to the contention of defendant, Supreme Court properly refused to suppress evidenceobtained through the execution of an eavesdropping warrant. The application in support of theeavesdropping warrant established that "normal investigative procedures have been tried and havefailed, or reasonably appear to be unlikely to succeed if tried, or to be too dangerous to employ" (CPL700.15 [4]; see People v Barber, 269 AD2d 758, 759 [2000]). The police officer's affidavitattached to the warrant application indicated that, although the investigation had been ongoing forseveral months, traditional investigative measures such as the use of surveillance, confidential informants,telephone toll records, and undercover officers had been unsuccessful in determining the source of thenarcotics, one of the stated goals of the investigation. Contrary to defendant's further contention, "[t]helaw does not require that all possible investigative techniques, or any particular investigative technique,be tried, or that electronic surveillance be sought only as a last resort" (People v Fonville, 247AD2d 115, 119 [1998]; see People v Campaigni, 151 AD2d 1010 [1989], lv denied74 NY2d 845 [1989]).
We reject defendant's contention that the court erred in allowing the People to present testimonyconcerning the identity of the caller in certain incriminating recorded telephone calls. "A witness mayproperly testify to his or her opinion of the identification of a speaker's voice, regardless of whether thewitness became familiar with that voice before or after the identifying conversation occurred" (People v Hoffler, 41 AD3d 891, 893[2007], lv denied 9 NY3d 962, 963 [2007]; see People v Lynes, [*2]49 NY2d 286, 291 [1980]). Here, the People called a police officer whotestified that she listened to several live incoming calls to a suspected narcotics dealer pursuant to theexecution of the eavesdropping warrant in which the caller did not identify himself. Those incoming callswere made from the same telephone number, and the officer was able to determine that the caller wasthe same caller as in other recorded telephone calls from the same number in which the caller identifiedhimself as "Gary" or "G." We conclude that the officer became adequately familiar with the caller's voicein conducting her duties with respect to the eavesdropping warrant (see generally Hoffler, 41AD3d at 893). The court "properly left to the jury the role of weighing the probative value of the policeofficer's opinion testimony" (id.). Present—Centra, J.P., Peradotto, Green and Pine, JJ.