| People v Jackson |
| 2015 NY Slip Op 01667 [125 AD3d 1002] |
| February 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Anthony T. Jackson, Appellant. |
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.
Motion by the appellant for leave to reargue an appeal from a judgment of theSupreme Court, Nassau County, rendered November 9, 2011, which was determined bydecision and order of this Court dated May 21, 2014.
Upon the papers filed in support of the motion and no papers having been filed inopposition or in relation thereto, it is
Ordered that the motion is granted, the decision and order of this Court dated May21, 2014 (117 AD3d 966 [2014]), is recalled and vacated and the following decision andorder is substituted therefor:
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, also [*2]accused of involvement in the instant crimes, suggestingthat an eyewitness be harmed, were properly admitted into evidence, as this evidence wasprobative of the issue of the defendant's consciousness of guilt (see People v Green, 92 AD3d953 [2012]; People vMyrick, 31 AD3d 668, 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's claim of ineffective assistance of counsel due to his attorney'sfailure, inter alia, to move to set aside the verdict, to object to certain summationstatements of the prosecutor, and to challenge the validity of a "trap and trace order" isbased, in part, on matter appearing on the record, and, in part, on matter outside therecord, and thus constitutes a "mixed claim" of ineffective assistance (People v Maxwell, 89 AD3d1108, 1109 [2011]; seePeople v Fornal, 123 AD3d 1141 [2014]). In this case, it is not evident from thematter appearing on the record that the defendant was deprived of the effective assistanceof counsel (cf. People v Crump, 53 NY2d 824, 825 [1981]; People vBrown, 45 NY2d 852, 853-854 [1978]). "Since the defendant's claim of ineffectiveassistance of counsel cannot be resolved without reference to matter outside the record, aCPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety"(People v Badalamenti, 124 AD3d 672, 675 [2d Dept 2015], quoting People v Addison, 107 AD3d730, 732 [2013]).
[*3] The sentenceimposed was not excessive (seePeople v Hernandez, 88 AD3d 907 [2011]; People v Suitte, 90 AD2d80, 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.