| People v Russell |
| 2018 NY Slip Op 08971 [167 AD3d 1326] |
| December 27, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Akhenaton Russell, Appellant. |
David E. Woodin, Catskill, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered February 11, 2016, upon a verdict convicting defendant of the crime of criminal sale ofa controlled substance in the third degree (two counts).
In April and May 2014, defendant was the target of two separate controlled buy operations,during each of which he sold cocaine to a confidential informant (hereinafter CI) in exchange for$100. Each controlled buy operation took place in the CI's bedroom, was witnessed by anundercover officer hidden in the CI's bedroom closet and was captured by video/audiorecordings. Defendant was subsequently indicted on two counts of criminal sale of a controlledsubstance in the third degree. Following a jury trial, defendant was convicted as charged, andCounty Court sentenced him, as a second felony drug offender with a prior violent felonyoffense, to two concurrent prison terms of nine years, followed by three years of postreleasesupervision. Defendant now appeals, and we affirm.
Defendant argues that County Court should have granted his motion to preclude the in-courtidentification testimony offered by the detective in charge of both controlled buy operationsbecause the People failed to provide him with—as required by CPL 710.30 (1)(b)—notice of their intention to offer such testimony at trial. CPL 710.30 (1) (b) requiresthat, "[w]henever the [P]eople intend to offer at trial . . . testimony regarding anobservation of the defendant either at the time or place of the commission of the offense or uponsome other occasion relevant to the case, to be given by a witness who has previously identifiedhim or her . . . as such, they must serve upon the defendant a notice of suchintention." "The notice requirement applies to police-arranged identifications, and its purpose isto allow the defense an opportunity to inquire into whether misleading or suggestive procedureswere used that could affect the accuracy of a later identification in court" (People v Anderson, 149 AD3d1407, 1410 [2017] [citation omitted], lv denied 30 NY3d 947 [2017]; see Peoplev Gissendanner, 48 NY2d 543, 552 [1979]; People v Johnson, 150 AD3d 1390, 1394-1395 [2017], lvdenied 29 NY3d 1128 [2017]). "The statute's purposes are implicated only when theidentifying witness has experienced two distinct pretrial viewings of a defendant in which thewitness first observed the defendant at the time or place of an offense or another relevantoccasion, and then participated in a separate, police-initiated, identification procedure, such as alineup, showup or photographic array, which takes place subsequent to the observation formingthe basis for the witness's trial testimony and prior to the trial" (People v Anderson, 149AD3d at 1411 [internal quotation marks and citations omitted]; see People v Johnson,150 AD3d at 1395; People v Peterson, 194 AD2d 124, 128 [1993], lv denied 83NY2d 856 [1994]).
The record establishes that the detective who provided the challenged in-court identificationtestimony did not make an out-of-court, police-initiated identification of defendant following thecontrolled buys so as to trigger the notice requirements of CPL 710.30 (1) (b). At trial, thedetective testified that he was able to hear both sides of the conversation each time that the CImade a controlled call to defendant to arrange the controlled buys and that, based on havingpreviously heard defendant's voice 20 to 30 times "through the course of [his] duties," herecognized the voice on the other end of the line as belonging to defendant. The detective statedthat he had spoken with defendant several weeks prior to the first controlled buy for roughly 20to 30 minutes. Furthermore, with respect to each of the controlled buys, the detective testifiedthat he was able to observe defendant arrive at and depart from the prearranged buy location froma surveillance distance of roughly 20 to 25 yards under well-lit conditions and through the use ofbinoculars. Based on his personal observations during each of the controlled buys, the detectivedirectly identified defendant in court as the same person that he had seen coming and going fromeach of the controlled buys—a situation that does not implicate the notice requirement ofCPL 710.30 (1) (b) (see People v Anderson, 149 AD3d at 1411; People v Butler, 16 AD3d 915,916-917 [2005], lv denied 5 NY3d 786 [2005]; People v Rufin, 237 AD2d 866,867 [1997]; People v Peterson, 194 AD2d at 128-129). Moreover, contrary to defendant'scontention, the detective's participation in defendant's eventual arrest did not constitute apolice-initiated identification that would bring the in-court identification testimony under theambit of CPL 710.30 (1) (b) (see People v Gissendanner, 48 NY2d at 552). Accordingly,under these circumstances, the People were not required to provide defendant with notice of theirintention to present the detective's in-court identification testimony, and County Court properlydenied defendant's motion to preclude that testimony (see People v Johnson, 150 AD3d at1395; People v Butler, 16 AD3d at 916-917; People v Rufin, 237 AD2d at867).
Defendant further argues that County Court erred in admitting exhibit Nos. 1A and 2A intoevidence—which were transcriptions of the audio in each of the recordings depicting theunderlying controlled buys—for the limited purpose of helping the jurors to follow alongas they viewed the recordings. Defendant does not directly challenge County Court's pretrialaudibility determinations with regard to each of the recordings, which we too have reviewed andagree were sufficiently clear and intelligible to allow the jurors to discern their contents withoutresorting to speculation (see e.g. Peoplev Johnson, 151 AD3d 1462, 1463 [2017], lv denied 30 NY3d 1106 [2018];compare People v Wilson, 182 AD2d 734, 735 [1992]). Rather, defendant contends thatthe transcripts were inaccurate or incomplete and, thus, operated to mislead the jury. Wedisagree. Despite defendant's challenges to the accuracy of the transcripts (compare People vFeld, 305 NY 322, 331 [1953]; People v Reynolds, 192 AD2d 320, 321 [1993], lvdenied 81 NY2d 1079 [1993]), testimony from the undercover officers who witnessed thecontrolled buys and subsequently reviewed and made corrections to the transcripts providedsufficient proof as to the accuracy of the transcripts (see People v Morel, 246 AD2d 311,311-312 [1998], lv denied 91 NY2d 1010 [1998]; People v Tapia, 114 AD2d 983,984-985 [1985], lv denied 67 NY2d 951 [1986]). Moreover, County Court repeatedlyadvised the jurors that it was the recordings, not the transcripts, that constituted the evidence ofwhat allegedly occurred, that the transcripts were merely an aid to listening and that, if there wereany discrepancies between the recordings and the transcripts, the recordings controlled. In lightof the foregoing, County Court did not abuse its discretion in admitting the transcripts for thelimited purpose of aiding the jurors as they listened to and watched the recordings (see Peoplev Johnson, 151 AD3d at 1463; People v Watson, 172 AD2d 882, 883 [1991];People v Robinson, 158 AD2d 628, 628 [1990]; People v Warner, 126 AD2d788, 789 [1987], lv denied 69 NY2d 887 [1987]).
Lastly, we discern no abuse of discretion or extraordinary circumstances warranting areduction of defendant's sentence in the interest of justice. County Court sentenced defendant toprison terms that were well below the statutory maximum of 15 years (see Penal Law§ 70.70 [4] [b] [i]) and did not impose those prison terms consecutively, as it couldhave (see Penal Law § 70.25 [1]). Additionally, the record reflects that, inrendering its sentence, County Court appropriately balanced and considered a variety of factors,including the impact of defendant's crimes on the community and defendant's criminal history,which included repeated violations of the terms of his probation and parole. In view of all of theunderlying facts and circumstances, we do not find defendant's sentence to be harsh or excessive(see People v Dowling, 75 AD3d838, 841 [2010], lv denied 15 NY3d 952 [2010]).
Garry, P.J., McCarthy, Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.