Opinion
105486
03-12-2015
The PEOPLE of the State of New York, Respondent, v. Tyrone CHAPPELLE, Appellant.
John Ferrara, Monticello, for appellant. D. Holley Carnright, District Attorney (Joan Gudesblatt Lamb of counsel), for respondent.
John Ferrara, Monticello, for appellant.
D. Holley Carnright, District Attorney (Joan Gudesblatt Lamb of counsel), for respondent.
Before: LAHTINEN, J.P., GARRY, DEVINE and CLARK, JJ.
Opinion
LAHTINEN, J.P.Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered September 13, 2012, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree (two counts) and criminal sale of a controlled substance in the third degree (two counts).
In November 2011, several law enforcement agencies were involved in an operation targeting mid and street-level drug sales in the City of Kingston, Ulster County. After a confidential informant accompanied by an undercover officer had completed a drug transaction with a targeted dealer, defendant approached them about purchasing cocaine from him. On two separate occasions later that day, about one to two hours apart, defendant allegedly sold cocaine to the confidential informant in a vehicle while the undercover officer was present and witnessed the transactions. Defendant was subsequently indicted in March 2012 on charges of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts). A jury found him guilty of all counts. He was sentenced as a prior violent felony offender to 15 years in prison on each sale count and 10 years in prison on each possession count, all to run concurrently, together with postrelease supervision. Defendant appeals.
Defendant argues that reversible error occurred since a portion of voir dire was not transcribed. “Although we agree that verbatim recordation of the trial proceedings is the better practice, unless waived, the case law makes clear that the absence of a stenographic record does not, per se, require reversal of a defendant's conviction” (People v. Jenkins, 90 A.D.3d 1326, 1329, 935 N.Y.S.2d 204 [2011], lv. denied 18 N.Y.3d 958, 944 N.Y.S.2d 487, 967 N.E.2d 712 [2012] [internal quotation marks and citations omitted]; see People v. Harrison, 85 N.Y.2d 794, 796, 628 N.Y.S.2d 939, 652 N.E.2d 638 [1995] ). “ ‘Rather, a defendant must show that a request was made that the voir dire proceedings be recorded, the request was denied, and the failure to record the proceedings prejudiced him or her in some manner’ ” (People v. Jenkins, 90 A.D.3d at 1329, 935 N.Y.S.2d 204, quoting People v. Lane, 241 A.D.2d 763, 763, 660 N.Y.S.2d 890 [1997], lv. denied 91 N.Y.2d 875, 668 N.Y.S.2d 574, 691 N.E.2d 646 [1997] ). Here, voir dire was recorded, except one portion during which each counsel exercised peremptory challenges to the first panel of jurors. However, defendant did not request that this part (or any part) of voir dire be recorded (see People v. Vasquez, 226 A.D.2d 932, 932–933, 641 N.Y.S.2d 437 [1996], affd. 89 N.Y.2d 521, 655 N.Y.S.2d 870, 678 N.E.2d 482 [1997], cert. denied sub nom. Cordero v. Lalor, 522 U.S. 846, 118 S.Ct. 131, 139 L.Ed.2d 80 [1997] ) and, importantly, he does not assert that an incorrect ruling or any prejudicial error occurred during the omitted portion (see People v. Skaar, 225 A.D.2d 824, 825, 638 N.Y.S.2d 846 [1996], lv. denied 88 N.Y.2d 854, 644 N.Y.S.2d 700, 667 N.E.2d 350 [1996] ).
County Court did not err in admitting the cocaine into evidence. Defendant asserts that the People failed to adequately establish that the drugs were purchased from defendant rather than the targeted dealer. However, defendant did not object to the admission into evidence of the two packets containing cocaine and, accordingly, this issue was not preserved for review (see People v. Kennedy, 78 A.D.3d 1233, 1237, 910 N.Y.S.2d 590 [2010], lv. denied 16 N.Y.3d 896, 926 N.Y.S.2d 32, 949 N.E.2d 980 [2011] ; People v. Brooks, 210 A.D.2d 800, 803, 621 N.Y.S.2d 701 [1994], lv. denied 85 N.Y.2d 906, 627 N.Y.S.2d 329, 650 N.E.2d 1331 [1995] ). In any event, “[t]aken as a whole, the testimony amply demonstrate[d] that there existed reasonable assurances of identity and unchanged condition of the substance offered in evidence at trial so as to establish that it was cocaine and that it was secured from defendant” (People v. Gilmore, 72 A.D.3d 1191, 1192–1193, 898 N.Y.S.2d 717 [2010] [internal quotation marks and citations omitted]; accord People v. Julian, 41 N.Y.2d 340, 343, 392 N.Y.S.2d 610, 360 N.E.2d 1310 [1977] ; see People v. Hawkins, 11 N.Y.3d 484, 494, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ). Defendant argues that he was denied the effective assistance of counsel because of counsel's failure to object to the small portion of voir dire that was not recorded and to the admission of the cocaine into evidence. We are not persuaded. “So long as the evidence, the law and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met” (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ; accord People v. Oathout, 21 N.Y.3d 127, 128, 967 N.Y.S.2d 654, 989 N.E.2d 936 [2013] ). “The test is ‘reasonable competence, not perfect representation’ ” (People v. Oathout, 21 N.Y.3d at 128, 967 N.Y.S.2d 654, 989 N.E.2d 936, quoting People v. Modica, 64 N.Y.2d 828, 829, 486 N.Y.S.2d 931, 476 N.E.2d 330 [1985] ). As we have already discussed, the first failure to object (i.e., at voir dire) has not been shown to have had any prejudicial impact on the trial and the second (i.e., chain of custody) has not been established as meritorious such that an objection would have properly prevented admission of the cocaine. Moreover, review of the record reveals counsel's meaningful representation by appropriate motions, timely sustained objections, thorough cross-examination of witnesses and a reasonable defense strategy (see People v. Malcolm, 74 A.D.3d 1483, 1486, 902 N.Y.S.2d 264 [2010], lv. denied 15 N.Y.3d 954, 917 N.Y.S.2d 113, 942 N.E.2d 324 [2010] ; People v. Conklin, 63 A.D.3d 1276, 1277, 881 N.Y.S.2d 524 [2009], lv. denied 13 N.Y.3d 859, 891 N.Y.S.2d 693, 920 N.E.2d 98 [2009] ).
ORDERED that judgment is affirmed.
GARRY, DEVINE and CLARK, JJ., concur.