| People v Acevedo |
| 2013 NY Slip Op 08145 [112 AD3d 985] |
| December 5, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vHector Acevedo, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Albany County(Breslin, J.), rendered November 22, 2011, upon a verdict convicting defendant of thecrime of criminal sale of a controlled substance in the second degree.
Defendant met with a confidential informant (hereinafter CI) and gave him apowdered substance containing cocaine in exchange for $1,500. The CI was wearing anaudio-visual recording device that recorded the transaction. After a jury trial, defendantwas convicted of criminal sale of a controlled substance in the second degree. CountyCourt sentenced him, as a second felony offender, to 12 years in prison, followed by fiveyears of postrelease supervision. Defendant appeals.
The verdict is not against the weight of the evidence. According to the testimony oftwo forensic scientists, one called by each party, the substance that the CI turned over tothe police contained cocaine. The People were required to prove that the substance had"an aggregate weight of one-half ounce or more" (Penal Law § 220.41 [1]).One-half ounce is equal to 14.17 grams. Defendant and the CI initially determined thatthe substance weighed 15 grams. A forensic scientist with the State Police testified that itweighed 14.46 grams on her balance. That balance is calibrated twice each year and thecalibration is verified by an analyst in the laboratory each week. Defendant's independentanalyst testified that the substance weighed 13.94 grams on her balance, which iscalibrated twice each year and is verified by her daily. A detective had [*2]removed a small amount of the substance for a field testand the State Police scientist had removed a small amount to test the substance.Witnesses testified that a small amount of the substance would cling to a plastic bagwhen transferring it for weighing. Giving deference to the jury's credibilitydeterminations regarding the conflicting evidence as to the weight of the substance (see People v Parker, 84 AD3d1508, 1509-1510 [2011], lv denied 18 NY3d 927 [2012]), the weight of theevidence supports the finding that the substance weighed one-half ounce or more.
Although defendant gave the substance to the CI in two portions and the CIcombined them into one bag, the People did not need to prove that the separate portionseach contained cocaine. Defendant indicated that each portion was cocaine when he soldit to the CI and the crime is not based on the purity of the drug in the substance, as "theaggregate weight of a controlled substance is determined by the weight of the substancewhich contains the drug, irrespective of the amount of the drug in the substance"(People v Mendoza, 81 NY2d 963, 965 [1993] [internal quotation marks andcitation omitted]; see People vMoultrie, 100 AD3d 401, 401-402 [2012], lv denied 20 NY3d 1102[2013]).
The People proved that the sale occurred on the date listed in the indictment. The CItestified inconsistently as to whether it occurred on the listed date or the following day.The recording had a visual date stamp for the following day. Despite this confusion,three police officers testified that the sale occurred on the listed date and one explainedthat the recording contained an improper date stamp. The jury reasonably resolved thiscredibility question to determine that the sale occurred on the listed date.
Although the CI was an admitted drug user, he received benefits—includingreduced criminal charges and money—as a result of his cooperation with policeand his testimony contained some errors concerning the date, we cannot say that histestimony was incredible as a matter of law (see People v Wilson, 100 AD3d 1045, 1046 [2012]; People v Williamson, 77AD3d 1183, 1184 [2010]; People v Heaney, 75 AD3d 836, 837 [2010], lvdenied 15 NY3d 852 [2010]). His testimony, along with the recording of thetransaction and the testimony of the police officers and forensic scientists, establishedbeyond a reasonable doubt that defendant committed the alleged crime.
County Court did not err in excluding a log of the verification of the defense expert'sbalance calibration. Such evidence is not required and was cumulative considering theexpert's testimony that she personally verified the calibration each day, including the daythat she weighed the substance at issue (see People v Parker, 84 AD3d at1509-1510; People v Rotundo, 194 AD2d 943, 946 [1993], lv denied 82NY2d 726 [1993]; compare People v Freeland, 68 NY2d 699, 700-701 [1986];People v English, 103 AD2d 979, 980 [1984]). Thus, the court did not abuse itsdiscretion by making this evidentiary ruling.
County Court did not err in refusing to strike the CI's testimony due to aRosario violation. Although the recording device presumably recorded the CI'swords and actions leading up to an aborted sale with defendant earlier the same day,including phone calls between the CI and defendant and between the CI and the police,any recording from that transaction was never downloaded. Assuming that the failure topreserve such a recording constituted a Rosario violation, the court haddiscretion to determine the appropriate sanction (see People v Wallace, 76 NY2d953, 955 [1990]; People vShcherenkov, 21 AD3d 651, 652 [2005]). Considering the lack of bad faith bythe police officers who failed to download this portion of the recording (which theydeemed would have no value because the planned sale did not take place) and theminimal amount of prejudice demonstrated by defendant due to the absence of such arecording, we cannot say that County Court abused its discretion by giving an adverseinference charge to the jury regarding that missing recording, rather than striking a keywitness's testimony (see Peoplev Carpenter, 88 AD3d 1160, 1161 [2011]; People v Davis, 18 AD3d 1016, 1018-1019 [2005], lvdenied 5 NY3d 805 [2005]).
Finally, County Court did not err in refusing defendant's request for an expanded jurycharge on the extent of the benefits received by the CI in exchange for working with thepolice. Quoting from the charge in the Criminal Jury Instructions (see CJI2d[NY]Credibility of Witnesses-Benefit), the court instructed the jury that, in assessing the CI'scredibility, the jury could consider the CI's criminal convictions and "whether a witnesshopes for or expects to receive a benefit for testifying," including "whether and to whatextent [any such benefit] affected the truthfulness of that witness's testimony." Thischarge "was sufficient to adequately convey the need to scrutinize the testimony at issue"(People v Wilson, 100 AD3d at 1048; see People v Inniss, 83 NY2d 653,658-659 [1994]; People v Jackson, 74 NY2d 787, 789-790 [1989]).
Rose, J.P., Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.