| People v Ebron |
| 2011 NY Slip Op 09046 [90 AD3d 1243] |
| December 15, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v CaezareEbron, Also Known as Noony, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered May 21, 2010, upon a verdict convicting defendant of the crime of criminal sale of acontrolled substance in the third degree.
In November 2008, the City of Albany Police Department used a confidential informant(hereinafter CI) to purchase crack-cocaine from an individual later identified as defendant. Ninemonths later, defendant was arrested and charged by indictment with criminal sale of a controlledsubstance in the third degree. A jury trial was subsequently conducted, after which defendant wasconvicted of said crime and sentenced to seven years in prison plus three years of postreleasesupervision. Defendant now appeals.
Defendant claims that his conviction was not supported by legally sufficient evidence andwas against the weight of the credible evidence introduced at trial because it was never proventhat he was the individual who sold cocaine to the CI. We disagree. When the sale was made, theCI was working as part of a police operation in which he was directed to purchase cocaine at aspecific address in Albany. The police arranged for surveillance of the area and observed the CI,who was wearing a recording device, when he approached the address to [*2]purchase cocaine. After the CI made a purchase, he returned towhere the police officers were located and gave them a piece of loose cocaine. At trial, the CIand two detectives identified defendant as the individual who made the sale, and two otherdetectives, one of whom had known defendant since he was a child, made a confirmatoryidentification of defendant. This evidence, coupled with recordings made of the transaction,established not only a legally sufficient basis for the jury's verdict, but also that the convictionwas supported by the weight of the credible evidence introduced at trial (see People vBleakley, 69 NY2d 490, 495 [1987]; People v Stevens, 87 AD3d 754, 755 [2011]; People v Lawal, 73 AD3d 1287,1289 [2010]; People v Rolle, 72AD3d 1393, 1396 [2010], lv denied 16 NY3d 745 [2011]).
Defendant contends that County Court erred when it permitted the People to use aperemptory challenge to remove the sole African American from the jury (see Batson vKentucky, 476 US 79, 82-100 [1986]). When directed by County Court to provide arace-neutral explanation for the challenge (see People v Smocum, 99 NY2d 418, 422[2003]; People v Lee, 80 AD3d877, 879 [2011], lv denied 16 NY3d 833 [2011]), the People stated that theychallenged the juror because he had attended high school with a police officer who hadparticipated in the arrest of defendant and who would testify at trial. The juror also stated that,before making an assessment of a police officer's credibility, he would want to know his or herreputation among other police officers for being honest and truthful. County Court found thatexplanation to be credible and determined that the People's use of the peremptory challenge wasnot racially motivated. On this record, we perceive no reason not to defer to County Court'sassessment of the credibility of the People's explanation (see People v Lee, 80 AD3d at879-880; People v Murphy, 79AD3d 1451, 1452 [2010], lv denied 16 NY3d 862 [2011]; People v Knowles, 79 AD3d 16,20-21 [2010], lv denied 16 NY3d 896 [2011]) or its conclusion that the challenge to thisjuror was not racially motivated (see People v Knowles, 79 AD3d at 20-21).
Defendant also argues that County Court erred by admitting into evidence recordings that hadnot been properly authenticated. Initially, defendant challenged the admissibility of a recordingmade of the conversation between the CI and the seller at the time the transaction took place.Defendant contends that the compact disc played at trial was a copy of the original recording andshould not have been admitted into evidence without testimony from the witness who actuallycopied the original recording onto the compact disc. "It is well settled that [a]dmissibility oftape-recorded conversation requires proof of the accuracy or authenticity of the tape by clear andconvincing evidence establishing that the offered evidence is genuine and that there has been notampering with it" (People vJackson, 43 AD3d 488, 490 [2007], lv denied 9 NY3d 962 [2007] [internalquotation marks and citations omitted]; see People v Bell, 5 AD3d 858, 861 [2004]). Here, the CI, as wellas a detective who monitored the conversation, testified that the compact disc accurately reflectedthe conversation as recorded on the device that the CI was wearing when he made this purchase.Such testimony served to authenticate the compact disc, established its accuracy and provided alegal foundation for its admission into evidence at trial (see People v Ely, 68 NY2d 520,522 [1986]; People v Peele, 73AD3d 1219, 1221 [2010], lv denied 15 NY3d 894 [2010]; People v Jackson,43 AD3d at 490). Defendant also objected to a recording of radio communications among policeofficers at the time that they were surveilling the transaction. Again, an officer involved in thesurveillance and a participant in these conversations identified the voices on the recording,verified that it was accurate and explained that the "dead air" on the recording occurred when nocommunications among police officers were taking place. Again, for reasons previously noted, aproper foundation was laid and this recording was properly received into evidence at trial.[*3]
Defendant claims that a police officer who identified hisvoice on the recording at trial should not have been permitted to give such testimony without ahearing being held to determine if his identification of defendant's voice was the result of animpermissibly suggestive procedure employed by the police (see United States v Wade,388 US 218, 229 [1967]; People v Rodriguez, 79 NY2d 445, 450 [1992]). Since thisofficer testified to being a longtime acquaintance of defendant, his identification of defendant'svoice had an independent basis, and a hearing inquiring into how it was obtained was notrequired (see generally CPL 710.30 [1] [b]; see People v Jackson, 43 AD3d at489-490; see also People v Buchanon, 186 AD2d 864, 866 [1992], lv denied 81NY2d 785 [1993]).
Defense counsel's failure to move to dismiss the indictment because of the time thattranspired between the sale and the date the indictment was filed did not constitute ineffectiveassistance of counsel. Defendant was not incarcerated on these charges until after the indictmentwas returned and he was arrested. Moreover, he has failed to demonstrate how he was prejudicedby the time it took to secure this indictment after the sale took place or that the delay was part ofa deliberate effort to compromise his ability to mount a proper defense at trial (see People vTaranovich, 37 NY2d 442, 445-447 [1975]; People v Weatherspoon, 86 AD3d 792, 792-793 [2011], lvdenied 17 NY3d 905 [2001]; Peoplev Ruise, 86 AD3d 722, 722-723 [2011], lv denied 17 NY3d 861 [2011]; People v Striplin, 48 AD3d 878,879-880 [2008], lv denied 10 NY3d 871 [2008]; People v Garcia, 46 AD3d 1120, 1120-1121 [2007], lvdenied 10 NY3d 863 [2008]). Finally, considering defendant's criminal history, the sentenceimposed—far less than the maximum (see Penal Law § 70.45 [2] [e];§ 70.70 [3] [b] [i])—was not harsh or excessive, and we do not find anyextraordinary circumstances or an abuse of discretion warranting a modification of the sentenceimposed (see People v Danford, 88AD3d 1064, 1068 [2011]; People vBailey, 80 AD3d 999, 1002 [2011]).
Mercure, A.P.J., Peters, Spain and Rose, JJ., concur. Ordered that the judgment is affirmed.