| People v Hotaling |
| 2016 NY Slip Op 00397 [135 AD3d 1171] |
| January 21, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vTammy L. Hotaling, Appellant. |
Abbie Goldbas, Utica, for appellant.
John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Otsego County (Burns, J.),rendered February 21, 2014, upon a verdict convicting defendant of the crime of criminalsale of a controlled substance in the third degree.
Following her alleged sale of cocaine to a confidential informant (hereinafter CI)during a controlled buy monitored by several nearby law enforcement officers andcaptured by audio and video recording devices placed in the CI's vehicle, defendant wascharged in a single-count indictment with criminal sale of a controlled substance in thethird degree. After a jury trial, she was convicted as charged and sentenced, as a secondfelony offender, to a prison term of seven years, plus two years of postreleasesupervision. Defendant appeals.
We affirm. Defendant first maintains that the integrity of the grand jury proceedingwas compromised when, in response to a question as to whether he provided his services"for nothing," the CI falsely responded, "Correct." While the presentation of falsetestimony to the grand jury can impact the integrity of the proceeding (see CPL210.35 [5]; People v Pelchat, 62 NY2d 97, 106 [1984]), the questioning herecentered on whether the CI was paid for his services, to which the CI added that he hadbeen paid in the past, but not here. Notably, the People presented the testimony ofMichael Ten Eyck, an investigator in the Otsego County Sheriff's Office, who clarifiedthe CI's misstatement by explaining that the CI had agreed to participate in [*2]exchange for leniency relative to several traffic tickets.While the CI's statement was incomplete and, thus, misleading, the details of thecooperation agreement pertained only to the collateral issue of the CI's credibility and notthe core question for the grand jury to decide as to whether a prima facie case existed(see People v Hansen, 290 AD2d 47, 50-51 [2002], affd 99 NY2d 339[2003]). In view of Ten Eyck's testimony, we perceive no undue prejudice, and adismissal of the indictment is not warranted (see People v Charles-Pierre, 31 AD3d 659, 659 [2006];People v Hansen, 290 AD2d at 50-51).
Defendant further alleges that the People committed Brady, Rosarioand Ventimiglia violations and the prosecutor made improper comments duringsummations, effectively depriving her of a fair trial. We are not persuaded. As for thealleged Brady violations, defendant maintains that the People failed to disclosethe complete terms of the CI's cooperation agreement and a text message purportedly sentby defendant to the CI initiating the cocaine sale. While defendant failed to preserve thisargument by raising a timely objection at trial (see CPL 330.30 [1]; People v Ross, 43 AD3d567, 569 [2007], lv denied 9 NY3d 964 [2007]), the argument is, in anyevent, without merit. The People clearly have a duty to disclose the terms of anycooperation agreement with a witness and, in fact, did so (see People v Novoa, 70NY2d 490, 496-497 [1987]). Contrary to defendant's argument, the record shows that, inresponse to defendant's demand to produce, the People disclosed that the CI "wasworking with the police in exchange for leniency on pending charges." Moreover, thisarrangement was detailed during the cross-examination of the CI. As for the textmessage, the CI's testimony revealed that he received the text message from defendantand then notified the police of her offer to sell him cocaine; therefore, he was not actingas an agent of law enforcement at the time he received the message. It follows that thePeople were under no obligation to secure, preserve or disclose the text message(see CPL 240.20; Peoplev Smith, 89 AD3d 1148, 1150 [2011], lv denied 19 NY3d 968 [2012]).Moreover, the text message was clearly inculpatory. As such, were this issue before us,we would perceive no Brady or Rosario violations relative to the textmessage (see People v Smith, 89 AD3d at 1150; People v Burroughs, 64 AD3d894, 898 [2009], lv denied 13 NY3d 794 [2009]). Next, we find no merit indefendant's remaining Rosario argument that the People failed to disclose the CI'scriminal history. The People's contention that they provided defendant with the CI's latestcriminal history prior to trial (see CPL 240.45 [1] [b]) is confirmed by the factthat defense counsel cross-examined the CI as to his criminal history.
Defendant's Ventimiglia challenge was also unpreserved because she failedto object to Ten Eyck's testimony suggesting that defendant had engaged in priorcriminal activity with the CI. In any event, were this issue properly before us we wouldfind it to be without merit. Although the prosecutor asked open-ended questions thatelicited Ten Eyck's response, the prosecutor did not directly ask about defendant's prioracts (see People vRobinson, 16 AD3d 768, 770 [2005], lv denied 4 NY3d 856 [2005]).Moreover, after conferring with counsel, County Court issued a prompt curativeinstruction to "disregard any testimony about any prior dealings between the [CI] and[defendant]." As for the prosecutor's comment during summation that "[t]he only wayyou can find this defendant not guilty is if you somehow feel sorry for her," we note thatdefendant did not object and, thus, her argument is unpreserved (see People v Nadal, 131 AD3d729, 731 [2015], lv denied 26 NY3d 1041 [2015]; People v Lamont, 21 AD3d1129, 1131 [2005], lv denied 6 NY3d 835 [2006]). In any event, this isolatedcomment did not rise to the level of prosecutorial misconduct warranting a new trial.
Finally, we are not persuaded by defendant's assertion that she was deprived of theeffective assistance of counsel. It is noteworthy that County Court assigned two attorneysto represent defendant at trial. While defendant takes issue with defense counsel's failureto obtain more detail as to the cooperation agreement with the CI, the terms of thatagreement were [*3]explored during cross-examination.Nor are we persuaded that counsel failed to adequately object to Ten Eyck's testimonyexplaining how the controlled buy was arranged with the CI, or that defense counsel'sefforts to impeach certain witnesses were inadequate. The standard here is one ofmeaningful representation (seePeople v Oathout, 21 NY3d 127, 128 [2013]), and we are satisfied thatmeaningful representation was provided.
Lahtinen, J.P., McCarthy, Egan Jr. and Devine, JJ., concur. Ordered that thejudgment is affirmed.