| People v Jordan |
| 2017 NY Slip Op 07486 [154 AD3d 1176] |
| October 26, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jerome Jordan, Appellant. |
Carolyn B. George, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Schenectady County (Giardino,J.), rendered July 24, 2014, upon a verdict convicting defendant of the crimes of criminal sale ofa controlled substance in the third degree (two counts), criminal possession of a controlledsubstance in the third degree (two counts) and criminal possession of a controlled substance inthe fourth degree (two counts).
In January 2013, defendant sold cocaine to a confidential informant (hereinafter CI) duringtwo controlled buys. Police thereafter obtained and executed a search warrant for defendant'sresidence, where they discovered, among other things, significant quantities of cocaine andweapons. As a result, defendant was charged in a 20-count indictment with various crimesstemming from both the two controlled buys and the search of his residence. County Courtgranted defendant's motion to suppress the evidence seized from his residence, concluding thatthe warrant was not grounded upon probable cause, and dismissed the counts of the indictmentstemming from the search. Following a jury trial on the remaining charges, defendant wasconvicted of two counts each of criminal sale of a controlled substance in the third degree,criminal possession of a controlled substance in the third degree and criminal possession of acontrolled substance in the fourth degree. County Court denied defendant's subsequent motion toset aside the verdict and sentenced him, as a second felony offender, to an aggregate prison termof six years followed by three years of postrelease supervision. Defendant appeals.
[*2] Given that County Court invalidated the search warrant onprobable cause grounds and suppressed all evidence obtained as a result thereof, defendant'sargument that he was entitled to an Alfinito/Franks hearing to test the sufficiency of theaverments on which the warrant was based is moot (cf. People v Coleman, 134 AD3d 1555, 1557 [2015], lvdenied 27 NY3d 963 [2016]; People v Kyser, 284 AD2d 1017, 1018 [2001]). To theextent that defendant asserts that County Court erred in not dismissing the counts related to thetwo controlled buys upon its conclusion that the search warrant was invalid, we find such claimto be devoid of merit. It is axiomatic that the exclusionary rule precludes "only evidence which isthe 'fruit of the poisonous tree' " (People v Arnau, 58 NY2d 27, 32 [1982][citation omitted], cert denied 468 US 1217 [1984]; see Wong Sun v UnitedStates, 371 US 471, 485 [1963]). In other words, "[t]he exclusionary rule enjoins the[g]overnment from benefiting from evidence it has unlawfully obtained; it does not reachbackward to taint information that was in official hands prior to any illegality" (United Statesv Crews, 445 US 463, 475 [1980]). Here, the evidence supporting the counts of theindictment related to the two controlled buys that occurred on January 3 and 8, 2013 wasindependently obtained prior to the execution of the defective warrant on January 16,2013. Thus, by definition, such evidence was not "come at by exploitation of that illegality"(People v Arnau, 58 NY2d at 32 [internal quotation marks and citations omitted]; seePeople v Johnson, 102 AD2d 616, 626 [1984], lv denied 63 NY2d 776 [1984]). Asthe charges pertaining to the two controlled buys were supported by evidence that was not subjectto suppression as a product of the unlawful warrant, County Court properly declined to dismissthem.
Defendant's contention that the People committed a Brady violation by failing totimely disclose impeachment information regarding the CI is unpreserved for our review (see People v Ennis, 11 NY3d 403,414 n 2 [2008], cert denied 556 US 1240 [2009]; People v Stacconi, 151 AD3d 1395, 1397 [2017]; People v Hotaling, 135 AD3d1171, 1172 [2016]) and, in any event, without merit. "Untimely or delayed disclosure willnot prejudice a defendant or deprive him or her of a fair trial where the defense is provided with ameaningful opportunity to use the allegedly exculpatory material to cross-examine the People'switnesses or as evidence during his or her case" (People v Carter, 131 AD3d 717, 718-719 [2015] [internal quotationmarks, brackets and citations omitted], lv denied 26 NY3d 1007 [2015]; see People vOsborne, 91 NY2d 827, 828-829 [1997]; People v Serrano, 99 AD3d 1105, 1106 [2012], lv denied20 NY3d 1014 [2013]). On the eve of trial, the prosecutor disclosed that the CI had attempted tokeep some of the money provided to him by the police and drugs that he purchased fromdefendant, and that a second recording of the first controlled buy existed wherein defendant canbe heard sniffing cocaine. Defendant did not request additional time to prepare for trial in light ofthese disclosures. At trial, the defense highlighted these facts during opening statements andrepeatedly used the information during cross-examination to challenge the credibility of variouswitnesses, including, most notably, the CI and the lead detective on the case (see People v Bayard, 15 NY3d896, 898 [2010]; People v Brown, 67 NY2d 555, 559 [1986], cert denied 479US 1093 [1987]; People v Muniz,93 AD3d 871, 876 [2012], lv denied 19 NY3d 965 [2012]). Inasmuch as defendanthad a meaningful opportunity to review the Brady materials and use them in his defense,we would find that he was not prejudiced by their delayed disclosure (see People vOsborne, 91 NY2d at 828-829; People v Carter, 131 AD3d at 720; People vMuniz, 93 AD3d at 876).
We find no merit to defendant's claim that the People failed to establish a proper chain ofcustody for the cocaine purchased during the controlled buys. The detailed testimony offered bythe CI and detectives—who searched the CI before and after the controlled buys, listenedto the transactions through an audio device and observed the CI return from defendant's residenceand turn over the cocaine—as well as that of the relevant law enforcement officialsregarding the collection, securing and testing of the cocaine at issue, provided " 'thenecessary reasonable [*3]assurances of the identity andunchanged condition of the drugs to authenticate that evidence' " (People vCarter, 131 AD3d at 723, quoting People v Danford, 88 AD3d 1064, 1067 [2011], lv denied18 NY3d 882 [2012]; see People vGilmore, 72 AD3d 1191, 1192-1193 [2010]). Contrary to defendant's contention, thefact that the CI admittedly skimmed some of the cocaine that he had purchased from defendantbefore handing it over to the police does not establish "a material and prejudicial change in thecondition or nature of the [cocaine]" sufficient to render such evidence inadmissible (People vJulian, 41 NY2d 340, 344 [1977]; cf. People v Shoga, 89 AD3d 1225, 1226-1227 [2011], lvdenied 18 NY3d 886 [2012]). To the contrary, the trial testimony provided a reasonableassurance that the items sold by defendant were the same items as those subsequently analyzedby the police, and any deficiencies in the chain of custody relate to the weight to be accorded theevidence, not its admissibility (seePeople v Hawkins, 11 NY3d 484, 494 [2008]; People v Carter, 131 AD3d at723; People v Brock, 107 AD3d1025, 1027 [2013], lv denied 21 NY3d 1072 [2013]; People v Valderama, 25 AD3d819, 820 [2006], lv denied 6 NY3d 854 [2006]). Defendant's remaining contentions,to the extent not specifically addressed herein, have been reviewed and found to be withoutmerit.
Egan Jr., Devine, Mulvey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.