| People v Gouveia |
| 2011 NY Slip Op 07237 [88 AD3d 814] |
| October 11, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AnselGouveia, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Rossof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.),rendered August 19, 2005, convicting him of criminal sale of a controlled substance in the firstdegree and conspiracy in the second degree (two counts), upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant was arrested and charged with numerous crimes as the result of a long-termpolice investigation into alleged trafficking involving the importation of cocaine from the nationof Guyana into the United States for sale in New York. He was tried jointly with a codefendant,Steven Gerrara (see People v Gerrara, 88 AD3d 811 [2011] [decided herewith]). Oneother codefendant, Wayne Chan, with whom both the defendant and Gerrara were being jointlytried, entered a plea of guilty mid-trial, and offered testimony against the defendant and Gerrara.The jury found the defendant guilty of criminal sale of a controlled substance in the first degreeand two counts of conspiracy in the second degree.
The trial court properly admitted at trial evidence of an illegal narcotics shipment andtestimony confirming the existence of Devandra Persaud, also known as "Cully Boy," a deceasedmember of the defendant's criminal organization. The trial court properly admitted limitedevidence about Persaud in order to correct any misleading impression left after the defensesuggested, during cross-examination of an informant, that Persaud did not exist (see People vMassie, 2 NY3d 179 [2004]; Peoplev Vasquez, 33 AD3d 636 [2006]; People v Rodriguez, 28 AD3d 496 [2006]). As with the evidence ofPersaud's existence, the evidence of the shipment was properly admitted to correct anymisimpression left after the cross-examination of the informant suggesting that the shipment didnot exist, and to complete the narrative of events (see generally People v Alvino, 71NY2d 233 [1987]).
The defendant's contention that the trial court erred in allowing testimony into evidenceregarding the identification of his voice is without merit. Voice identifications must be measuredby the same due process considerations that apply to visual identifications (see People vCollins, 60 NY2d 214 [1983]; People v Wong, 133 AD2d 184, 185 [1987]). In theabsence of some improper conduct by law enforcement officials, there is no due process violation(see People v Wong, 133 AD2d at 185; People v Frawley, 131 AD2d 504 [1987];People v Ramos, 52 AD2d 640, 644 [1976], affd 42 NY2d 834 [1977]). Here,there is no allegation of improper police conduct resulting in a due process violation. Further,each witness testified to the basis for his identification of the defendant's voice on the audio[*2]tapes. One testifying officer's familiarity with the defendant'svoice was a result of his repeatedly listening to the tapes and hearing the defendant's voice whenhe was arrested, while the second officer had heard the defendant's voice during his arrestprocessing after listening to the tapes. Each officer had personal experience with the defendantand his voice. It was not required that either testifying officer be qualified as an expert in order toidentify the defendant's voice (see United States v Chiarizio, 525 F2d 289 [1975]).
Contrary to the defendant's contention, he was not deprived of the effective assistance ofcounsel, as counsel provided meaningful representation (see People v Benevento, 91NY2d 708, 712-714 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]).
The defendant contends that the People's summation remarks constituted reversible error.However, the comments alleged to be inflammatory and prejudicial were either fair comment onthe evidence (see People v Ashwal, 39 NY2d 105 [1976]), responsive to arguments andtheories presented in the defense summation (see People v Galloway, 54 NY2d 396[1981]; People v Crawford, 54AD3d 961 [2008]), stricken, thereby dissipating any prejudice resulting from the impropercomment (see People v Berg, 59 NY2d 294 [1983]; People v Arce, 42 NY2d 179[1977]; People v Lawrence, 254 AD2d 502 [1998]), or harmless error (see People vCrimmins, 36 NY2d 230, 241-242 [1975]; People v Hill, 286 AD2d 777, 778[2001]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004],cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant's contention that the trial court erred in denying, without a hearing, his motionto set aside the verdict due to improper juror conduct (see CPL 330.30 [2]) is withoutmerit. The moving papers did not contain sworn allegations of the essential facts supporting themotion (see CPL 330.40). Instead, the motion was supported by the hearsay allegations ofdefense counsel, which were insufficient to meet the threshold requirement of CPL 330.40 (2)(a). Accordingly, no hearing was required, and the motion was properly denied (see generallyPeople v Lopez, 104 AD2d 904 [1984]).
There is no merit to the defendant's contention that the sentence imposed is excessive (seePeople v Suitte, 90 AD2d 80 [1982]). The defendant's contention that the sentence wasimproperly influenced by his Guyanese nationality and/or because he exercised his right to trial isalso without merit. Our review of the sentencing record reveals that the Supreme Court reliedupon the appropriate factors in sentencing (see People v Pena, 50 NY2d 400, 411-412[1980], cert denied 449 US 1087 [1981]; People v Izaguirre, 51 AD3d 946 [2008]; People v Gillian, 28 AD3d 577,577-578 [2006], affd 8 NY3d 85 [2006]; People v Herrera, 16 AD3d 699 [2005]; People v Suitte, 90AD2d 80 [1982]). While the People correctly concede that the defendant is eligible to seekresentencing to a lower determinate term of imprisonment under the Drug Law Reform Act of2004 on the conviction of criminal sale of a controlled substance in the first degree, such reliefmust be pursued in a separate proceeding (see CPL 440.46).
The defendant's remaining contentions, including those raised in his pro se supplementalbrief, are without merit. Skelos, J.P., Dickerson, Austin and Cohen, JJ., concur.