| People v Chappelle |
| 2015 NY Slip Op 02019 [126 AD3d 1127] |
| March 12, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Tyrone Chappelle, Appellant. |
John Ferrara, Monticello, for appellant.
D. Holley Carnright, District Attorney (Joan Gudesblatt Lamb of counsel), forrespondent.
Lahtinen, J.P. Appeal from a judgment of the County Court of Ulster County(Williams, J.), rendered September 13, 2012, upon a verdict convicting defendant of thecrimes of criminal possession of a controlled substance in the third degree (two counts)and criminal sale of a controlled substance in the third degree (two counts).
In November 2011, several law enforcement agencies were involved in an operationtargeting mid and street-level drug sales in the City of Kingston, Ulster County. After aconfidential informant accompanied by an undercover officer had completed a drugtransaction with a targeted dealer, defendant approached them about purchasing cocainefrom him. On two separate occasions later that day, about one to two hours apart,defendant allegedly sold cocaine to the confidential informant in a vehicle while theundercover officer was present and witnessed the transactions. Defendant wassubsequently indicted in March 2012 on charges of criminal sale of a controlledsubstance in the third degree (two counts) and criminal possession of a controlledsubstance in the third degree (two counts). A jury found him guilty of all counts. He wassentenced as a prior violent felony offender to 15 years in prison on each sale count and10 years in prison on each possession count, all to run concurrently, together withpostrelease supervision. Defendant appeals.
Defendant argues that reversible error occurred since a portion of voir dire was nottranscribed. "Although we agree that verbatim recordation of the trial proceedings is thebetter practice, unless waived, the case law makes clear that the absence of astenographic record does not, per se, require reversal of a defendant's conviction" (People v Jenkins, 90 AD3d1326, 1329[*2][2011], lv denied 18 NY3d958 [2012] [internal quotation marks, brackets and citations omitted]; see People vHarrison, 85 NY2d 794, 796 [1995]). " 'Rather, a defendant must show that arequest was made that the voir dire proceedings be recorded, the request was denied, andthe failure to record the proceedings prejudiced him or her in some manner' "(People v Jenkins, 90 AD3d at 1329, quoting People v Lane, 241 AD2d763, 763 [1997], lv denied 91 NY2d 875 [1997]). Here, voir dire was recorded,except one portion during which each counsel exercised peremptory challenges to thefirst panel of jurors. However, defendant did not request that this part (or any part) ofvoir dire be recorded (see People v Vasquez, 226 AD2d 932, 932-933 [1996],affd 89 NY2d 521 [1997], cert denied sub nom. Cordero v Lalor, 522 US846 [1997]) and, importantly, he does not assert that an incorrect ruling or anyprejudicial error occurred during the omitted portion (see People v Skaar, 225AD2d 824, 825 [1996], lv denied 88 NY2d 854 [1996]).
County Court did not err in admitting the cocaine into evidence. Defendant assertsthat the People failed to adequately establish that the drugs were purchased fromdefendant rather than the targeted dealer. However, defendant did not object to theadmission into evidence of the two packets containing cocaine and, accordingly, thisissue was not preserved for review (see People v Kennedy, 78 AD3d 1233, 1237 [2010], lvdenied 16 NY3d 896 [2011]; People v Brooks, 210 AD2d 800, 803 [1994],lv denied 85 NY2d 906 [1995]). In any event, "[t]aken as a whole, the testimonyamply demonstrate[d] that there existed reasonable assurances of identity and unchangedcondition of the substance offered in evidence at trial so as to establish that it wascocaine and that it was secured from defendant" (People v Gilmore, 72 AD3d 1191, 1192-1193 [2010][internal quotation marks and citations omitted]; accord People v Julian, 41NY2d 340, 343 [1977]; seePeople v Hawkins, 11 NY3d 484, 494 [2008]).
Defendant argues that he was denied the effective assistance of counsel because ofcounsel's failure to object to the small portion of voir dire that was not recorded and tothe admission of the cocaine into evidence. We are not persuaded. "So long as theevidence, the law and the circumstances of a particular case, viewed in totality and as ofthe time of the representation, reveal that the attorney provided meaningfulrepresentation, the constitutional requirement will have been met" (People vBaldi, 54 NY2d 137, 147 [1981]; accord People v Oathout, 21 NY3d 127, 128 [2013]). "Thetest is 'reasonable competence, not perfect representation' " (People vOathout, 21 NY3d at 128, quoting People v Modica, 64 NY2d 828, 829[1985]). As we have already discussed, the first failure to object (i.e., at voir dire) has notbeen shown to have had any prejudicial impact on the trial and the second (i.e., chain ofcustody) has not been established as meritorious such that an objection would haveproperly prevented admission of the cocaine. Moreover, review of the record revealscounsel's meaningful representation by appropriate motions, timely sustained objections,thorough cross-examination of witnesses and a reasonable defense strategy (see People v Malcolm, 74AD3d 1483, 1486 [2010], lv denied 15 NY3d 954 [2010]; People v Conklin, 63 AD3d1276, 1277 [2009], lv denied 13 NY3d 859 [2009]).
Garry, Devine and Clark, JJ., concur. Ordered that judgment is affirmed.