| People v Cruz |
| 2015 NY Slip Op 09518 [134 AD3d 1455] |
| December 23, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAngel Cruz, Also Known as John Doe, Appellant. (Appeal No.1.) |
Charles T. Noce, Conflict Defender, Rochester (Shirley A. Gorman of counsel), fordefendant-appellant.
Eric T. Schneiderman, Attorney General, Albany (Dennis A. Rambaud of counsel),for respondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.),rendered September 25, 2008. The judgment convicted defendant, upon a jury verdict, ofconspiracy in the second degree, attempted criminal possession of a controlled substancein the first degree, attempted criminal possession of a controlled substance in the thirddegree, criminal sale of a controlled substance in the second degree and criminalpossession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himfollowing a jury trial of, inter alia, conspiracy in the second degree (Penal Law§ 105.15), attempted criminal possession of a controlled substance in thefirst degree (§§ 110.00, 220.21 [1]), and criminal sale of a controlledsubstance in the second degree (§ 220.41 [1]). In appeal No. 2, defendantappeals from a judgment convicting him following the same jury trial of criminalpossession of a weapon in the second degree (§ 265.03 [3]) and criminalpossession of a weapon in the third degree (§ 265.02 [1]). Contrary todefendant's contention, County Court did not abuse its discretion in granting the People'smotion to consolidate the indictments (see People v Bankston, 63 AD3d 1616, 1616-1617 [2009],lv denied 14 NY3d 885 [2010]; see generally People v Lane, 56 NY2d 1,8 [1982]). The offenses were joinable under CPL 200.20 (2) (a) or, alternatively, CPL200.20 (2) (b) (see People v Burroughs, 191 AD2d 956, 956-957 [1993], lvdenied 82 NY2d 715 [1993]).
We reject defendant's contention that the court erred in denying his motion tosuppress the evidence obtained from eavesdropping warrants. The applicationsestablished that "normal investigative procedures have been tried and have failed, orreasonably appear to be unlikely to succeed if tried, or to be too dangerous to employ"(CPL 700.15 [4]; see People vRabb, 16 NY3d 145, 152-153 [2011], cert denied 565 US &mdash, 132S Ct 453 [2011]; People vHanks, 87 AD3d 1370, 1371, amended on rearg 90 AD3d 1592 [2011],lv denied 18 NY3d 883 [2012]). Contrary to defendant's further contention,reversal is not required based on lost trial exhibits. The recorded telephone conversationsobtained pursuant to the eavesdropping warrants, which are now lost, were introduced inevidence, and many of those recordings were in Spanish. English transcripts wereprovided to the jury as an aid while the recordings were played during the trial, but theywere not admitted in evidence. The transcripts were, however, marked as court exhibitsand are part of the record before us. Defendant does not contest that the transcripts wereaccurate translations of the audiotaped recordings. We therefore conclude that reversal isnot required inasmuch as the record includes the information contained in the lostrecordings and allows for effective appellate review (see People v Yavru-Sakuk,98 NY2d 56, 59-60 [2002]; People v Strollo, 191 NY 42, 67-68 [1908]). Inaddition, the lost bill of sale for the vehicle in which the police found a weapon does notpreclude [*2]effective appellate review inasmuch asdefendant raises no challenge to the sufficiency or weight of the evidence with respect tothe weapons counts in appeal No. 2.
Defendant failed to preserve for our review his contention that either the transcriptsshould have been admitted in evidence or the court should have appointed an interpreterto translate the conversations as they were played to the jury (see People vMartinez, 222 AD2d 702, 702 [1995], lv denied 87 NY2d 1022 [1996]).Contrary to defendant's contention, this was not a mode of proceedings error (see People v Rincon, 40 AD3d538, 539 [2007], lv denied 9 NY3d 880 [2007]; see e.g. People vMorel, 246 AD2d 311, 311 [1998], lv denied 91 NY2d 1010 [1998];Martinez, 222 AD2d at 702). In any event, the court acted within its discretion indeclining to admit the transcripts in evidence (see People v Mendez, 26 NY3d 1004, 1005 [2015];People v Tapia, 114 AD2d 983, 984-985 [1985], lv denied 67 NY2d 951[1986]; see also People v Robinson, 158 AD2d 628, 628-629 [1990]).
Viewing the evidence in light of the elements of the crimes in appeal No. 1 ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see id. at 348-349; People v Bleakley, 69NY2d 490, 495 [1987]). Defendant contends that he received ineffective assistance ofcounsel based on defense counsel's failure to move to suppress the eavesdroppingevidence pursuant to CPL 700.70 and defense counsel's failure to object to an officer'sidentification of defendant's voice on the ground that no notice was given pursuant toCPL 710.30. Defendant failed to show that defense counsel did not have a strategicreason for not making the motion pursuant to CPL 700.70 inasmuch as the record showsno colorable basis for such a motion (see People v Rivera, 71 NY2d 705,708-709 [1988]). The record before us indicates that the People complied with CPL700.70 by turning over a disc containing the eavesdropping warrants and applications atthe time defendant was arraigned. In addition, there was no pretrial police-arranged voiceidentification made by the officer (see People v Jackson, 94 AD3d 1559, 1560 [2012], lvdenied 19 NY3d 1026 [2012]; People v Morenito, 281 AD2d 928, 928-929[2001], lv denied 96 NY2d 904 [2001]), and therefore any objection on theground of lack of notice pursuant to CPL 710.30 would have had little or no chance ofsuccess (see People v Raszl,108 AD3d 1049, 1050 [2013]).
Defendant initially pleaded guilty to a reduced count but, at sentencing, the courtgranted defendant's request to withdraw his plea, whereupon the case proceeded to trial.On appeal, defendant contends that the court should not have granted his application towithdraw his plea without first, sua sponte, affording him the opportunity to confer withdefense counsel. That contention is not preserved for our review (see People v Umali, 10 NY3d417, 423 [2008], rearg denied 11 NY3d 744 [2008], cert denied 556US 1110 [2009]) and, in any event, it is without merit (see generally People vO'Conner, 21 AD3d 1287, 1288 [2005], lv denied 6 NY3d 816[2006]).
As the People correctly concede, the court erred in sentencing defendant as apersistent violent felony offender on the conviction of criminal possession of a weaponin the second degree in appeal No. 2 where, as here, defendant committed the secondpredicate violent felony before being sentenced on the first predicate violent felony (see People v Davis, 43 AD3d448, 449 [2007], lv denied 9 NY3d 990 [2007], reconsideration denied10 NY3d 763 [2008]; see generally People v Morse, 62 NY2d 205, 224-225[1984], appeal dismissed 469 US 1186 [1985]). We therefore modify thejudgment in appeal No. 2 by vacating the sentence imposed on count one of theindictment, and we remit the matter to County Court for resentencing on that count. Wenote, however, that the People are not precluded at resentencing "from attempting toestablish, on the basis of a different conviction or convictions, that defendant isnonetheless a persistent violent felony offender" (People v Colon, 45 AD3d 457, 458 [2007], lv denied10 NY3d 809 [2008]; seegenerally People v Johnson, 124 AD3d 1318, 1319 [2015], lv denied 25NY3d 951 [2015]). Present—Scudder, P.J., Centra, Carni, Valentino andDeJoseph, JJ.