Opinion
2015-10-9
The PEOPLE of the State of New York, Respondent, v. Terrance B. HINES, Defendant–Appellant.
David P. Elkovitch, Auburn, for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Respondent.
David P. Elkovitch, Auburn, for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY AND DeJOSEPH, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him after a nonjury trial of two counts each of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) and criminal sale of a controlled substance in the third degree (§ 220.39[1] ). Contrary to defendant's contention, the conviction is supported by legally sufficient evidence, i.e., the eyewitness testimony of the confidential informant and police officers and the forensic testimony establishing the existence of cocaine ( see People v. Brown, 2 A.D.3d 1423, 1424, 770 N.Y.S.2d 243, lv. denied1 N.Y.3d 625, 777 N.Y.S.2d 24, 808 N.E.2d 1283). Contrary to defendant's further contention, viewing the evidence in light of the elements of the crimes in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
We reject defendant's contention that County Court erred in refusing to order judicial diversion instead of incarceration. “Courts are afforded great deference in making judicial diversion determinations,” and here the court did not abuse its discretion (People v. Williams, 105 A.D.3d 1428, 1428, 963 N.Y.S.2d 899, lv. denied21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399). We also reject defendant's contention that he is entitled to a new trial based on Brady violations. Even assuming, arguendo, that the prosecutor delayed in providing defendant with Brady material, we conclude that a new trial is not warranted inasmuch as defendant received the material in time for its meaningful and effective use at trial ( see People v. Daniels, 115 A.D.3d 1364, 1365, 982 N.Y.S.2d 689, lv. denied23 N.Y.3d 1019, 992 N.Y.S.2d 802, 16 N.E.3d 1282; see generally People v. Reese, 23 A.D.3d 1034, 1036, 803 N.Y.S.2d 852, lv. denied6 N.Y.3d 779, 811 N.Y.S.2d 347, 844 N.E.2d 802).
Defendant further contends that the People failed to disclose evidence of an allegedly lenient sentence given to the confidential informant in an unrelated matter in exchange for favorable testimony, and that such evidence would have impeached the credibility of the witness whose testimony was determinative of guilt ( see Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104). Even assuming, arguendo, that this evidence constituted Brady/Giglio material, we conclude that defendant's right to a fair trial was not violated because he was provided a meaningful opportunity to use the allegedly exculpatory evidence to cross-examine the People's witness ( see People v. Leavy, 290 A.D.2d 516, 516–517, 736 N.Y.S.2d 681, lv. denied98 N.Y.2d 698, 747 N.Y.S.2d 417, 776 N.E.2d 6). Likewise, even assuming, arguendo, that the confidential informant's probation violation constituted a “conviction” subject to disclosure under CPL 240.45(1)(b), we conclude that defendant was fully apprised of this information in time for a meaningful opportunity to cross-examine the witness at trial ( see People v. Clark, 194 A.D.2d 868, 869, 598 N.Y.S.2d 847, lv. denied82 N.Y.2d 752, 603 N.Y.S.2d 994, 624 N.E.2d 180).
Defendant's contention that pretrial conversations between the confidential informant and members of the Finger Lakes Drug Task Force constitute Rosario material is without merit. There is no indication that any of the conversations during those meetings were transcribed or recorded ( see People v. Barnes, 200 A.D.2d 751, 751, 607 N.Y.S.2d 92, lv. denied83 N.Y.2d 849, 612 N.Y.S.2d 380, 634 N.E.2d 981), and thus the People had no disclosure obligation pursuant to CPL 240.45(1)(a). Inasmuch as the People were not required to prove the quantity of the cocaine to sustain the conviction of the crimes charged ( see People v. Kisenik, 285 A.D.2d 829, 830–831, 727 N.Y.S.2d 540, lv. denied97 N.Y.2d 657, 737 N.Y.S.2d 58, 762 N.E.2d 936), defendant's contention that the People's failure to produce the calibration records of the forensic lab requires reversal is without merit. Even assuming, arguendo, that the curriculum vitae of the People's forensic scientist constituted Rosario material, we conclude that defendant's contention in this regard is also without merit because he failed to establish that he was substantially prejudiced by the delay in obtaining that document prior to the commencement of trial ( see People v. Gardner, 26 A.D.3d 741, 741, 808 N.Y.S.2d 519, lv. denied6 N.Y.3d 848, 816 N.Y.S.2d 754, 849 N.E.2d 977).
We also reject defendant's contention that the court erred in failing to conduct a Wade/Rodriguez hearing. It is well settled that “[a] Wade hearing is not required when the witness is so familiar with the defendant that there is little or no risk that police suggestion could lead to a misidentification” (People v. Carter, 57 A.D.3d 1017, 1017–1018, 868 N.Y.S.2d 378, lv. denied12 N.Y.3d 781, 879 N.Y.S.2d 57, 906 N.E.2d 1091 [internal quotation marks omitted] ). Here, the People established that the confidential informant had known defendant “for years” prior to the drug transactions at issue. Thus, the identification of defendant by the confidential informant from a single photograph was “merely confirmatory,” and no hearing was required based on any issue of suggestiveness (People v. Furman, 294 A.D.2d 848, 848, 741 N.Y.S.2d 761, lv. denied98 N.Y.2d 696, 747 N.Y.S.2d 415, 776 N.E.2d 4; see People v. Rodriguez, 79 N.Y.2d 445, 449–450, 583 N.Y.S.2d 814, 593 N.E.2d 268). With respect to the in-court identification of defendant by a police witness, the People established that there was no pretrial identification procedure that would trigger the notice requirements of CPL 710.30 ( see People v. Jackson, 94 A.D.3d 1559, 1560, 943 N.Y.S.2d 365, lv. denied19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111), and we thus reject defendant's contention that the court erred in allowing that witness to testify at trial based on the People's alleged failure to comply with CPL 710.30.
By failing to object to the court's ultimate Sandoval ruling, defendant failed to preserve for our review his contention that he was denied a fair trial based on that ruling ( see People v. Riley, 117 A.D.3d 1495, 1495–1496, 984 N.Y.S.2d 735, lv. denied24 N.Y.3d 1088, 1 N.Y.S.3d 14, 25 N.E.3d 351). In any event, we conclude in this nonjury trial that the court's Sandoval ruling did not constitute an abuse of discretion ( see People v. Small, 79 A.D.3d 1807, 1808, 917 N.Y.S.2d 772, lv. denied16 N.Y.3d 837, 921 N.Y.S.2d 201, 946 N.E.2d 189; see generally People v. Hayes, 97 N.Y.2d 203, 207–208, 738 N.Y.S.2d 663, 764 N.E.2d 963). Contrary to defendant's further contention, the court's discretionary determination to deny recusal was not an abuse of discretion ( see People v. Evans, 118 A.D.3d 1476, 1476–1477, 988 N.Y.S.2d 809). We reject defendant's further contention that the court erred in permitting the People to adduce hearsay testimony from a police officer to connect defendant to the vehicle that was used in the drug transactions. It is well settled that a court is presumed in a nonjury trial to have considered only competent evidence ( see People v. LoMaglio, 124 A.D.3d 1414, 1416, 1 N.Y.S.3d 713 lv. denied 25 N.Y.3d 1203, 16 N.Y.S.3d 526, 37 N.E.3d 1169; People v. Sims, 127 A.D.2d 805, 806, 511 N.Y.S.2d 935, lv. denied70 N.Y.2d 656, 518 N.Y.S.2d 1050, 512 N.E.2d 576). In any event, we conclude that the testimony was properly introduced for the “nonhearsay purpose of completing the narrative of events and explaining police actions” (People v. Guerrero, 22 A.D.3d 266, 266, 801 N.Y.S.2d 739, lv. denied5 N.Y.3d 882, 808 N.Y.S.2d 585, 842 N.E.2d 483).
To the extent defendant contends that he was penalized by the court for exercising his right to a trial, defendant failed to preserve that contention for our review because he did not raise the issue at the time of sentencing ( see People v. Coapman, 90 A.D.3d 1681, 1683–1684, 936 N.Y.S.2d 454, lv. denied18 N.Y.3d 956, 944 N.Y.S.2d 484, 967 N.E.2d 709). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.