| People v Galunas |
| 2013 NY Slip Op 04048 [107 AD3d 1034] |
| June 6, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vMatthew C. Galunas, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Shirley Huang of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Ulster County(Williams, J.), rendered July 7, 2010, upon a verdict convicting defendant of the crime ofcriminal sale of a controlled substance in the third degree (two counts).
Following a jury trial, defendant was found guilty of two counts of criminal sale of acontrolled substance in the third degree in connection with two sales of prescriptiondrugs to a confidential informant and an undercover member of a drug task force unitconducting the drug-buy operation. County Court sentenced defendant to twoconsecutive prison terms of six years, followed by two years of postrelease supervision.Defendant appeals.
Initially, the People established a proper foundation for the admission oftape-recorded conversations between the confidential informant and defendant."Admissibility of tape-recorded conversation requires proof of the accuracy orauthenticity of the tape by 'clear and convincing evidence' establishing 'that the offeredevidence is genuine and that there has been no tampering with it' " (People v Ely,68 NY2d 520, 527 [1986], quoting People v McGee, 49 NY2d 48, 59 [1979],cert denied sub nom. Waters v New York, 446 US 942 [1980]; see People v Ebron, 90 AD3d1243, 1245 [2011], lv denied 19 NY3d 863 [2012]; People v Tillman, 57 AD3d1021, 1024 [2008]). "Among other methods, admissibility may be demonstrated bythe testimony of a witness to the conversation or to its recording, or by evidenceidentifying the [*2]speakers and establishing the chain ofcustody of the recording and its unchanged condition" (People v Rendon, 273AD2d 616, 618 [2000], lv denied 95 NY2d 968 [2000]; see People v Ely,68 NY2d at 527-528).
Here, the foundation for the admission of the tape-recorded conversations was madethrough the testimony of various detectives overseeing the undercover operation whodescribed the events surrounding the creation of the recordings, identified the voices ofthe informant and defendant, and set forth a chain of custody of the recordings. Thetestimony established that the detective operating the recording device immediatelyreviewed the recordings at the conclusion of the conversations and thereafter secured therecordings in police custody. Just prior to trial, the detective reviewed the tapes again andattested that they were "fair and accurate representations" of the recordings previouslymade by him. In addition, a second detective testified to knowing defendant for 35 yearsand identified one voice on the recordings as that of defendant. Hence, the Peopleoffered sufficient proof of the accuracy and authenticity of the recordings to establish alegal foundation for their admission into evidence. Any challenge by defendant relatingto the reliability of the identification of his voice or inaudibility of the recording goes tothe weight of the evidence, not the admissibility (see People v McGee, 49 NY2dat 60).
Next, we find unavailing defendant's contention that the presentence report wasinadequate because it did not include an updated interview with defendant. "[T]here is nostatutory requirement that a statement by the defendant be included in the presentencereport" (People v Davila, 238 AD2d 625, 626 [1997]; see CPL 390.30;People v Perea, 27 AD3d960, 961 [2006]), but the presentence investigation report here in fact contains astatement by defendant regarding the instant offenses. Moreover, defendant declined theopportunity to address County Court at sentencing regarding any inadequacies containedin the report (see People vRamirez, 90 AD3d 1335, 1336 [2011], lv denied 18 NY3d 961 [2012]).
Finally, defendant's sentence was not harsh or excessive. Considering defendant'sextensive criminal history and the quantity of drugs involved in the instant matter, wediscern no abuse of discretion by County Court or any extraordinary circumstanceswarranting a reduction of the sentence in the interest of justice (see People v Carter, 97 AD3d852, 852 [2012], lv denied 19 NY3d 1024 [2012]).
Rose, J.P., Spain and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.