| People v Hines |
| 2015 NY Slip Op 07391 [132 AD3d 1385] |
| October 9, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTerrance B. Hines, Appellant. |
David P. Elkovitch, Auburn, for defendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel),for respondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.),rendered November 7, 2013. The judgment convicted defendant, after a nonjury trial, ofcriminal sale of a controlled substance in the third degree (two counts) and criminalpossession of a controlled substance in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him after a nonjurytrial of two counts each of criminal possession of a controlled substance in the thirddegree (Penal Law § 220.16 [1]) and criminal sale of a controlled substancein the third degree (§ 220.39 [1]). Contrary to defendant's contention, theconviction is supported by legally sufficient evidence, i.e., the eyewitness testimony ofthe confidential informant and police officers and the forensic testimony establishing theexistence of cocaine (see Peoplev Brown, 2 AD3d 1423, 1424 [2003], lv denied 1 NY3d 625 [2004]).Contrary to defendant's further contention, viewing the evidence in light of the elementsof the crimes in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]).
We reject defendant's contention that County Court erred in refusing to order judicialdiversion instead of incarceration. "Courts are afforded great deference in makingjudicial diversion determinations," and here the court did not abuse its discretion (People v Williams, 105 AD3d1428, 1428 [2013], lv denied 21 NY3d 1021 [2013]). We also rejectdefendant's contention that he is entitled to a new trial based on Brady violations.Even assuming, arguendo, that the prosecutor delayed in providing defendant withBrady material, we conclude that a new trial is not warranted inasmuch asdefendant received the material in time for its meaningful and effective use at trial (see People v Daniels, 115AD3d 1364, 1365 [2014], lv denied 23 NY3d 1019 [2014]; see generally People v Reese,23 AD3d 1034, 1036 [2005], lv denied 6 NY3d 779 [2006]).
Defendant further contends that the People failed to disclose evidence of an allegedlylenient sentence given to the confidential informant in an unrelated matter in exchangefor favorable testimony, and that such evidence would have impeached the credibility ofthe witness whose testimony was determinative of guilt (see Giglio v UnitedStates, 405 US 150, 154 [1972]). Even assuming, arguendo, that this evidenceconstituted Brady/Giglio material, we conclude that defendant's right to a fairtrial was not violated because he was provided a meaningful opportunity to use theallegedly exculpatory evidence to cross-examine the People's witness (see People vLeavy, 290 AD2d 516, 516-517 [2002], lv denied 98 NY2d 698 [2002]).Likewise, even assuming, arguendo, that the confidential informant's probation violationconstituted a "conviction" subject to disclosure under CPL 240.45 (1) (b), we concludethat defendant was fully apprised of this information in time for a meaningfulopportunity to cross-examine the witness at trial (see People v Clark, 194 AD2d868, 869 [1993], lv denied 82 NY2d 752 [1993]).
[*2] Defendant's contention that pretrial conversationsbetween the confidential informant and members of the Finger Lakes Drug Task Forceconstitute Rosario material is without merit. There is no indication that any of theconversations during those meetings were transcribed or recorded (see People vBarnes, 200 AD2d 751, 751 [1994], lv denied 83 NY2d 849 [1994]), andthus the People had no disclosure obligation pursuant to CPL 240.45 (1) (a). Inasmuch asthe People were not required to prove the quantity of the cocaine to sustain theconviction of the crimes charged (see People v Kisenik, 285 AD2d 829, 830-831[2001], lv denied 97 NY2d 657 [2001]), defendant's contention that the People'sfailure to produce the calibration records of the forensic lab requires reversal is withoutmerit. Even assuming, arguendo, that the curriculum vitae of the People's forensicscientist constituted Rosario material, we conclude that defendant's contention inthis regard is also without merit because he failed to establish that he was substantiallyprejudiced by the delay in obtaining that document prior to the commencement of trial(see People v Gardner, 26AD3d 741, 741 [2006], lv denied 6 NY3d 848 [2006]).
We also reject defendant's contention that the court erred in failing to conduct aWade/Rodriguez hearing. It is well settled that "[a] Wade hearing is notrequired when the witness is so familiar with the defendant that there is little or no riskthat police suggestion could lead to a misidentification" (People v Carter, 57 AD3d1017, 1017-1018 [2008], lv denied 12 NY3d 781 [2009] [internal quotationmarks omitted]). Here, the People established that the confidential informant had knowndefendant "for years" prior to the drug transactions at issue. Thus, the identification ofdefendant by the confidential informant from a single photograph was "merelyconfirmatory," and no hearing was required based on any issue of suggestiveness(People v Furman, 294 AD2d 848, 848 [2002], lv denied 98 NY2d 696[2002]; see People v Rodriguez, 79 NY2d 445, 449-450 [1992]). With respect tothe in-court identification of defendant by a police witness, the People established thatthere was no pretrial identification procedure that would trigger the notice requirementsof CPL 710.30 (see People vJackson, 94 AD3d 1559, 1560 [2012], lv denied 19 NY3d 1026 [2012]),and we thus reject defendant's contention that the court erred in allowing that witness totestify at trial based on the People's alleged failure to comply with CPL 710.30.
By failing to object to the court's ultimate Sandoval ruling, defendant failedto preserve for our review his contention that he was denied a fair trial based on thatruling (see People v Riley,117 AD3d 1495, 1495-1496 [2014], lv denied 24 NY3d 1088 [2014]). Inany event, we conclude in this nonjury trial that the court's Sandoval ruling didnot constitute an abuse of discretion (see People v Small, 79 AD3d 1807, 1808 [2010], lvdenied 16 NY3d 837 [2011]; see generally People v Hayes, 97 NY2d 203,207-208 [2002]). Contrary to defendant's further contention, the court's discretionarydetermination to deny recusal was not an abuse of discretion (see People v Evans, 118 AD3d1476, 1476-1477 [2014]). We reject defendant's further contention that the courterred in permitting the People to adduce hearsay testimony from a police officer toconnect defendant to the vehicle that was used in the drug transactions. It is well settledthat a court is presumed in a nonjury trial to have considered only competent evidence(see People v LoMaglio,124 AD3d 1414, 1416 [2015], lv denied 25 NY3d 1203 [2015]; People vSims, 127 AD2d 805, 806 [1987], lv denied 70 NY2d 656 [1987]). In anyevent, we conclude that the testimony was properly introduced for the "nonhearsaypurpose of completing the narrative of events and explaining police actions" (People v Guerrero, 22 AD3d266, 266 [2005], lv denied 5 NY3d 882 [2005]).
To the extent defendant contends that he was penalized by the court for exercisinghis right to a trial, defendant failed to preserve that contention for our review because hedid not raise the issue at the time of sentencing (see People v Coapman, 90 AD3d 1681, 1683-1684 [2011],lv denied 18 NY3d 956 [2012]). We decline to exercise our power to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]). Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J.,Smith, Carni, Lindley and DeJoseph, JJ.