| People v Dalton |
| 2018 NY Slip Op 06390 [164 AD3d 1645] |
| September 28, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Ronald M. Dalton, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-appellant.
Ronald M. Dalton, defendant-appellant pro se.
William J. Fitzpatrick, District Attorney, Syracuse (Kenneth H. Tyler, Jr., of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedSeptember 2, 2014. The judgment convicted defendant, upon a jury verdict, of criminal sale of acontrolled substance in the second degree and criminal possession of a controlled substance inthe third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminalsale of a controlled substance in the second degree (Penal Law § 220.41 [1]), andtwo counts of criminal possession of a controlled substance in the third degree(§ 220.16 [1], [12]), defendant contends that County Court erred in admitting inevidence a recording of the subject transaction made by law enforcement agents and in allowingthe jury to review a transcript of that recording, which was also made by those agents. We rejectthose contentions. It is well settled that the determination whether to permit the admission of arecording in evidence lies in the sound discretion of the trial court (see People v Rivera,257 AD2d 172, 176 [1st Dept 1999], affd 94 NY2d 908 [2000]; People vCleveland, 273 AD2d 787, 788 [4th Dept 2000], lv denied 95 NY2d 864 [2000]), andthat there is no abuse of discretion in admitting in evidence recordings having parts that "are lessthan clear, [so long as] they are not 'so inaudible and indistinct that the jury would have tospeculate concerning [their] contents' and would not learn anything relevant from them" (People v Jackson, 94 AD3d 1559,1561 [4th Dept 2012], lv denied 19 NY3d 1026 [2012]; see Cleveland, 273 AD2dat 788). "Moreover, 'it is also within [the] court's discretion to allow the use of transcripts as anassistance once audibility [is] established . . . [The fact] [t]hat the transcripts werenot made by an independent third party does not affect the tapes' admissibility once they arefound to be audible . . . This is particularly so [where, as, here,] the transcriptsthemselves are not admitted [in] evidence' " (People v Lopez, 119 AD3d 1426, 1428 [4th Dept 2014], lvdenied 25 NY3d 990 [2015]; seePeople v McIntosh, 158 AD3d 1289, 1291 [4th Dept 2018], lv denied 31 NY3d1015 [2018]). Here, we conclude that the court did not abuse its discretion in admitting inevidence the recordings or in permitting the jury to review the transcript while the recording wasbeing played.
Assuming, arguendo, that defendant's initial motion for a trial order of dismissal wassufficiently specific to preserve his contention that the conviction is not supported by legallysufficient evidence (see generally People v Gray, 86 NY2d 10, 19 [1995]), we concludethat defendant nevertheless failed to preserve his contention for our review because he neglectedto renew his motion after presenting evidence (see People v Hines, 97 NY2d 56, 61[2001], rearg denied 97 NY2d 678 [2001]). In any event, viewing the evidence in thelight most favorable to the People, as we must (see People v Conway, 6 NY3d 869, 872 [2006]; People vContes, 60 NY2d 620, 621 [1983]), we conclude that the evidence "is legally sufficient[inasmuch as] there is [a] valid line of reasoning and permissible inferences that could lead arational person to conclude that every element of the charged crime[s] has been proven beyond areasonable doubt" (People vDelamota, 18 NY3d 107, 113 [2011]). Furthermore, viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally People v Bleakley,69 NY2d 490, 495 [1987]).
Assuming, arguendo, that defendant preserved for our review his contention that the courterred in declining to order a new presentence investigation report or to strike certain informationfrom that report (cf. People vRichardson, 142 AD3d 1318, 1319 [4th Dept 2016], lv denied 28 NY3d 1150[2017]; People v Pedro, 134 AD3d1396, 1397 [4th Dept 2015]; seealso People v Jones, 114 AD3d 1239, 1242 [4th Dept 2014], lv denied 23 NY3d1038 [2014], 25 NY3d 1166 [2015]), we perceive no reason to disturb the sentence on thatground where, as here, there is no "indication that the court relied upon allegedly erroneousinformation in the presentence report in imposing the sentence" (People v Jaramillo, 97 AD3d1146, 1148 [4th Dept 2012], lv denied 19 NY3d 1026 [2012]; see People v Judd, 111 AD3d1421, 1423 [4th Dept 2013], lv denied 23 NY3d 1039 [2014]). To the extent thatsuch information could cause any prejudice to defendant subsequent to the sentencingproceeding, the court noted that the sentencing minutes containing defendant's challenge to theinformation at issue would be appended to the presentence investigation report, and we concludethat this relief "was sufficient to prevent such prejudice" (People v Serrano, 81 AD3d 753, 754 [2d Dept 2011], lvdenied 17 NY3d 801 [2011]; seePeople v Rogers, 156 AD3d 1350, 1350 [4th Dept 2017], lv denied 31 NY3d986 [2018]).
Defendant failed to preserve for our review his contention in his pro se supplemental briefthat he was deprived of a fair trial by prosecutorial misconduct (see People v Bastian, 83 AD3d1468, 1468-1469 [4th Dept 2011], lv denied 17 NY3d 813 [2011]). In any event, thatcontention is based on matters outside the record on appeal and thus must be raised by a motionpursuant to CPL article 440 (see Peoplev Hoeft, 42 AD3d 968, 969 [4th Dept 2007], lv denied 9 NY3d 962 [2007]; see generally People v Williams, 48AD3d 1108, 1109 [4th Dept 2008], lv denied 10 NY3d 872 [2008]).
We have considered the remaining contentions in defendant's main and pro se supplementalbriefs, and we conclude that they lack merit. Present—Whalen, P.J., Smith, DeJoseph,NeMoyer and Troutman, JJ.