| People v Lopez |
| 2014 NY Slip Op 05265 [119 AD3d 1426] |
| July 11, 2014 |
| Appellate Division, Fourth Department |
[*1]
| 1 The People of the State of New York, Respondent, vEfrain L. Lopez, Also Known as Effrain Lopez, Appellant. |
Charles T. Noce, Conflict Defender, Rochester (Kathleen P. Reardon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Erin Tubbs of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Dennis M. Kehoe,A.J.), rendered February 20, 2009. The judgment convicted defendant, upon a juryverdict, of criminal sale of a controlled substance in the third degree and criminalpossession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, following asecond trial, upon a jury verdict of criminal sale of a controlled substance in the thirddegree (Penal Law § 220.39 [1]) and criminal possession of a controlledsubstance in the third degree (§ 220.16 [1]). The first trial ended in amistrial based on a deadlocked jury. Defendant failed to preserve for our review hiscontention that the evidence established only that he was a "mere bystander" to thesubject sale of heroin and thus that the evidence is legally insufficient to establish that hewas an accessory to the crimes, as charged (see People v Hines, 97 NY2d 56, 61[2001], rearg denied 97 NY2d 678 [2001]). In any event, we reject thatcontention (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Contrary to defendant's contention, the evidence regarding his involvement in the subjectsale did not establish that such involvement was merely "brief and incidental" (Peoplev Marshall, 72 AD2d 922, 922 [1979]). Rather, the evidence established thatdefendant shared the requisite intent to commit the charged crimes, and a rational trier offact " 'could have found the elements of the crime[s] proved beyond a reasonabledoubt' " (People vDanielson, 9 NY3d 342, 349 [2007]). Viewing the evidence in light of theelements of the crimes as charged to the jury (see id.), we reject defendant'scontention that the verdict is against the weight of the evidence. It is well settled thatcredibility issues are "within the province of the jury, and its judgment should not belightly disturbed" (People vHarris, 15 AD3d 966, 967 [2005], lv denied 4 NY3d 831 [2005]), andwe perceive no reason to disturb the jury's resolution of those issues in this case.
Defendant further contends that the double jeopardy clause prohibited defendant'sretrial because the evidence at the first trial was legally insufficient. We reject thatcontention. Retrial is not barred by double jeopardy unless "the evidence from the firsttrial is determined by the [*2]reviewing court to belegally insufficient" (People vScerbo, 74 AD3d 1730, 1731 [2010], lv denied 15 NY3d 757 [2010]).Defendant concedes that "[t]he witnesses, testimony and evidence presented at the firsttrial were substantially similar to that presented at the second trial," and we previouslyrejected herein defendant's challenge to the legal sufficiency of the evidence at thesecond trial. In any event, viewing the facts in the light most favorable to the People(see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that the evidencein the first trial was legally sufficient (see generally Bleakley, 69 NY2d at495).
Defendant's further contention that prosecutorial misconduct on summation deprivedhim of a fair trial is preserved for our review only in part, inasmuch as he failed to objectto several of the allegedly improper statements (see People v Jones, 114 AD3d 1239, 1241 [2014]). In anyevent, defendant's contention lacks merit. We conclude that " '[a]ny improprietieswere not so pervasive or egregious as to deprive defendant of a fair trial' "(id.; see People vStanley, 108 AD3d 1129, 1131 [2013], lv denied 22 NY3d 959 [2013];People v Ward, 107 AD3d1605, 1606-1607 [2013], lv denied 21 NY3d 1078 [2013]).
Also contrary to defendant's contention, Supreme Court properly admitted anaudiotape of the subject heroin transaction in evidence and allowed the jury to use atranscript to assist it in understanding the audiotape (see People v Cleveland, 273AD2d 787, 788 [2000], lv denied 95 NY2d 864 [2000]). "A tape recording mustbe excluded from evidence only if it is so inaudible and indistinct that the jury wouldhave to speculate concerning its contents" (id.). Moreover, "it is also within [the]court's discretion to allow the use of transcripts as an assistance once audibility [is]established . . . [The fact] [t]hat the transcripts were not made by anindependent third party does not affect the tapes' admissibility once they are found to beaudible . . . This is particularly so [where, as, here,] the transcriptsthemselves are not admitted [in] evidence" (People v Watson, 172 AD2d 882,883 [1991]).
We further reject defendant's contention that he received ineffective assistance ofcounsel based on defense counsel's failure to renew his motion for a trial order ofdismissal after presenting evidence. As we determined herein, the evidence is legallysufficient, and it is well settled that a defendant "is not denied effective assistance of trialcounsel merely because counsel does not make a motion or argument that has little or nochance of success" (People vStultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]).
The sentence is not unduly harsh or severe. We have considered defendant'sremaining contention and conclude that it is without merit. Present—Scudder, P.J.,Fahey, Peradotto, Valentino and DeJoseph, JJ.