| People v Jackson |
| 2014 NY Slip Op 03699 [117 AD3d 966] |
| May 21, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Anthony T. Jackson, Appellant. |
[Recalled and vacated, see 125 AD3d 1002.]
Thomas T. Keating, Dobbs Ferry, N.Y., for appellant.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg, Jason R.Richards, and Joseph Mogelnicki of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Robbins, J.), rendered November 9, 2011, convicting him of murder in the seconddegree (three counts), robbery in the first degree (three counts), robbery in the seconddegree, burglary in the first degree (three counts), burglary in the second degree,kidnapping in the first degree, kidnapping in the second degree, and criminal possessionof a weapon in the second degree (two counts), upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's contentions that his constitutional rights were violated by theadmission of an inmate informant's testimony, including testimony about his passing ofcertain notes that the defendant wrote to another inmate, are unpreserved for appellatereview, as he did not object to the admission of this evidence on any constitutionalground (see CPL 470.05 [2]; People v Iannelli, 69 NY2d 684, 685[1986]). In any event, where an informer, such as the one here, works independently ofthe prosecution and provides information on his own initiative, and the government's roleis limited to the passive receipt of such information, the informer is not an agent of thegovernment (see People v Cardona, 41 NY2d 333, 335 [1977]; People v Corse, 73 AD3d1208, 1209 [2010]; People v Nicholas, 199 AD2d 425 [1993]; People vBoswell, 193 AD2d 690 [1993]; People v Halstead, 180 AD2d 818 [1992];see also United States v Birbal, 113 F3d 342, 346 [2d Cir 1997]).
Evidence of the notes written in prison by the defendant to another inmate, alsoaccused of involvement in the instant crimes, suggesting that an eyewitness be harmed,were properly admitted into evidence, as this evidence was probative of the issue of thedefendant's consciousness of guilt (see People v Green, 92 AD3d 953 [2012]; People v Myrick, 31 AD3d668, 669 [2006]).
The defendant's further contention that there was no proper foundation for theadmission of his prison notes is without merit. Circumstantial evidence, such as thatprovided here by an inmate and a handwriting expert, satisfied the requirement that awriting be authenticated before it may be introduced (see People v Dunbar Contr.Co., 215 NY 416 [1915]; People v Jean-Louis, 272 AD2d 626, 627 [2000];People v Murray, 122 AD2d 81, 82 [1986]).
The defendant's objections to the admission into evidence of his telephoneconversations with his girlfriend, which had been recorded by prison authorities, weremade solely on the grounds that the tapes were "unfairly prejudicial," and were not"clearly inculpatory" so as to constitute admissions. Therefore, objections to thisevidence on other grounds are unpreserved for appellate review (see CPL 470.05[2]; People v Iannelli, 69 NY2d at 685; People v White, 238 AD2d 530[1997]). In any event, the tapes were properly admitted into evidence, as there was noevidence that the girlfriend was acting as an agent of the police (see People vCardona, 41 NY2d at 335), and it is not unlawful to eavesdrop on a telephoneconversation with the consent of one of the parties to that conversation (see People vLasher, 58 NY2d 962, 963 [1983]). Here, the defendant had been informed innumerous ways that the telephone calls he made while in prison would be recorded. Aparty's consent to the taping of his telephone calls can be inferred from his knowledgethat such conversations would be monitored (see Curley v Board of Trustees of Vil.of Suffern, 213 AD2d 583 [1995]; People v Tabora, 139 AD2d 540, 541[1988]; see also People vKoonce, 111 AD3d 1277, 1279 [2013]).
The defendant's contention that he was denied his Sixth Amendment right toconfront witnesses against him when the People called Dr. Tamara Bloom to testifyabout the victim's autopsy is unpreserved for appellate review (see CPL 470.05[2]; People v Herb, 110AD3d 829, 831 [2013]), and in any event, without merit (see People v Freycinet, 11NY3d 38, 42 [2008]; People v Pealer, 20 NY3d 447, 454 [2013]; People v Green, 110 AD3d825 [2013]).
The defendant's claim that testimony regarding his flight from the police wasimproperly admitted into evidence is unpreserved for appellate review (see CPL470.05 [2]). In any event, this contention, along with his related contention that avideotape of his flight was improperly admitted into evidence, are without merit, as suchevidence was indicative of consciousness of guilt (see People v Yazum, 13 NY2d302, 304 [1963]; People v Leak, 303 AD2d 251 [2003]; People vKatende, 198 AD2d 522 [1993]).
The defendant's challenge to the introduction of a fingerprint comparison analysis isunpreserved for appellate review (see CPL 470.05 [2]). In any event, the opinionof the expert in fingerprint comparison was supported by a sufficient factual basisestablishing that an accepted methodology was appropriately employed (see People v Wilson, 107AD3d 919, 920 [2013]; Matter of Richard M., 89 AD3d 849 [2011]). Anyweakness in the fingerprint expert's testimony went to credibility and weight of theevidence rather than to its admissibility (see People v Garcia, 299 AD2d 493[2002]; see also People vMorency, 93 AD3d 736, 738 [2012]).
The defendant failed to meet his "high burden" of establishing that he was deprivedof the effective assistance of counsel (People v Hobot, 84 NY2d 1021, 1022[1995]; see Strickland v Washington, 466 US 668, 688, 694 [1984]; People v Turner, 5 NY3d476, 480 [2005]; People v Benevento, 91 NY2d 708, 714 [1998]). "Therecan be no denial of effective assistance of trial counsel arising from counsel's failure to'make a motion or argument that ha[d] little or no chance of success' " (People v Caban, 5 NY3d143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004]).
The sentence imposed was not excessive (see People v Hernandez, 88 AD3d 907 [2011]; People vSuitte, 90 AD2d 80, 83 [1982]).
The defendant's remaining contentions are unpreserved for appellate review and, inany event, without merit. Dillon, J.P., Balkin, Miller and Maltese, JJ., concur.