| People v Weaver |
| 2014 NY Slip Op 04295 [118 AD3d 1270] |
| June 13, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDouglas A. Weaver, Appellant. |
Douglas A. Weaver, defendant-appellant pro se.
Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), renderedApril 12, 2012. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a controlled substance in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a juryverdict, of criminal possession of a controlled substance in the fifth degree (Penal Law§ 220.06 [1]). Defendant's contention that he was deprived of a fair trialbased on prosecutorial misconduct on summation is not preserved for our review (seeCPL 470.05 [2]) and, in any event, is without merit (see People v Ward, 107 AD3d1605, 1606 [2013], lv denied 21 NY3d 1078 [2013]). Although theprosecutor improperly vouched for the credibility of the confidential police informantonce during his summation, such conduct was not so egregious as to deny defendant afair trial (see People v Lyon,77 AD3d 1338, 1339 [2010], lv denied 15 NY3d 954 [2010]). Furthermore,the prosecutor's comment that the evidence was "unrefuted" does not constitute acomment on defendant's failure to testify (see People v Tascarella, 227 AD2d888, 888 [1996], lv denied 89 NY2d 867 [1996]; People v Staples, 212AD2d 1052, 1052-1053 [1995]). "The remaining instances of alleged prosecutorialmisconduct on summation were either a fair response to defense counsel's summation orfair comment on the evidence" (Lyon, 77 AD3d at 1339 [internal quotation marksomitted]).
Defendant contends that the prosecutor also engaged in misconduct by failing tocomply with disclosure requirements. Specifically, defendant contends that theprosecutor provided him with an "extremely inaccurate" transcript of tape-recordedconversations between himself, the accomplice, and the informant, who was carrying thetape recorder provided to him by the police in his pocket during the controlled buy. Thatcontention is likewise unpreserved for our review (see CPL 470.05 [2]) and, inany event, is without merit. Although the transcript contained several errors, defendantwas not prejudiced thereby inasmuch as he was also provided with a copy of the taperecording, and the transcript ultimately was deemed inadmissible at trial (see generally People v Bradley,48 AD3d 1145, 1146 [2008], lv denied 10 NY3d 860 [2008]). Contrary todefendant's additional contention, the prosecutor did not engage in misconduct bypermitting the informant to review the transcript and tape recording prior to trial (seegenerally People v Neff, 287 AD2d 809, 810 [2001]).
[*2] We reject defendant's contention that County Courterred in admitting the tape recording in evidence. "Although portions of the recording[ ]are less than clear, they are not 'so inaudible and indistinct that the jury would have tospeculate concerning [their] contents' and would not learn anything relevant from them"(People v Jackson, 94AD3d 1559, 1561 [2012], lv denied 19 NY3d 1026 [2012]). Defendant'srelated contention that a proper foundation was not laid for the introduction of the taperecording in evidence, or for the introduction of a surveillance video in evidencedepicting the events giving rise to the controlled buy, is conclusory and unsupported bythe record. Finally, because the tape recording was properly admitted in evidence, wereject defendant's contention that the court interfered with his right to testify when itruled that such evidence could be used by the prosecutor in cross-examining him (seegenerally People v Cleveland, 273 AD2d 787, 788 [2000], lv denied 95NY2d 864 [2000]). We have reviewed defendant's additional contentions regarding thecourt's rulings on other motions, and we conclude that they are lacking in merit.
Defendant failed to preserve for our review his further contention that the evidence islegally insufficient to support the conviction on the grounds that "the testimony of analleged accomplice was both uncorroborated and incredible as a matter of law,"inasmuch as he "failed to move for a trial order of dismissal on either of those grounds"(People v Holloway, 97AD3d 1099, 1099 [2012], lv denied 19 NY3d 1026 [2012]). In any event,there was sufficient independent evidence tending to connect defendant to the crime(see People v Moses, 63 NY2d 299, 306 [1984]; People v Kaminski, 90 AD3d1692, 1692 [2011], lv denied 20 NY3d 1100 [2013]; see also CPL60.22 [1]), and the accomplice's testimony was not incredible as a matter of law (seegenerally People v Thibodeau, 267 AD2d 952, 953 [1999], lv denied 95NY2d 805 [2000]). Defendant's contention that there was no evidence indicating that heever possessed the drugs is belied by the record.
With respect to defendant's challenge to the weight of the evidence, we note that"[t]he jury had the opportunity to assess the testimony and credibility of the accomplice,who received favorable treatment in exchange for [her] testimony and who admitted that[she had] lied" about defendant's participation in the crime to other witnesses (People v Smith, 32 AD3d1291, 1292 [2006], lv denied 8 NY3d 849 [2007]). Viewing the evidence inlight of the elements of the crime as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see People v Bleakley, 69 NY2d 490, 495 [1987]).
We further conclude that, contrary to defendant's contention, he was not deniedeffective assistance of counsel. Defendant's assertions that defense counsel did notadequately investigate and prepare for trial, failed to introduce exculpatory evidence, andfailed to communicate with him are largely "based on matters outside the record onappeal and therefore must be raised by way of a motion pursuant to CPL 440.10" (People v Roman, 107 AD3d1441, 1443 [2013], lv denied 21 NY3d 1045 [2013]). To the extent thatthose assertions are reviewable on this appeal, we conclude that they lack merit (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]).
We likewise reject defendant's challenge to defense counsel's representation on thebasis of defense counsel's failures to object to admission of the tape recording inevidence, to object to prosecutorial misconduct, to make additional motions, and toobject to an alleged violation of the court's Sandoval ruling. None of thosefailures requires reversal. "A defendant is not denied effective assistance of trial counselmerely because counsel does not make a motion or argument that has little or no chanceof success" (People v Stultz,2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]). Lastly,defendant's contention that defense counsel failed to adequately cross-examine thePeople's witnesses is contradicted by the record. Viewing the evidence, the law, and thecircumstances of this case, in totality and as of the time of the representation, weconclude that defendant received meaningful representation (see Baldi, 54 NY2dat 147). Present—Smith, J.P., Fahey, Peradotto, Sconiers and Valentino, JJ.