Summary
finding unavailability is not a prerequisite for the admission of business records, and further, that defendant's confrontation right was not abridged when the chemist-expert was found unavailable because the defendant had the opportunity to cross-examine the expert's colleague on her laboratory notes
Summary of this case from Ellis v. PhillipsOpinion
June 11, 1998
Appeal from the County Court of Chemung County (Castellino, J.).
In November 1995, the Elmira Police Department recruited Cynthia Rice, an accused seller of cocaine, to aid them in an ongoing drug investigation. On November 16, 1995, under police supervision, Rice called defendant on his beeper number and, when he returned the call, their conversation arranging a drug sale was tape recorded. Following the call, Rice went to a preselected location where she purchased crack cocaine from defendant's brother. This process was repeated on November 24, 1995, resulting in a second taped conversation between Rice and defendant. Thereafter, defendant was indicted, tried and convicted of two counts of the crime of criminal sale of a controlled substance in the third degree. Defendant appeals.
Defendant's brother was also indicted and later entered a plea of guilty to the crime of criminal sale of a controlled substance in the third degree.
At defendant's trial, Kathleen McCulley, the chemist who conducted the tests on the substances Rice purchased, did not testify. Instead, her laboratory notes were admitted into evidence under the business records exception to the hearsay rule (see, CPLR 4518). A chemist who worked with McCulley and was familiar with her work then utilized McCulley's notes in her testimony.
Defendant contends that County Court erred in admitting McCulley's notes since there was no finding that she was unavailable. This contention is misplaced because unavailability of the declarant is not a prerequisite to the admission of business records ( see, People v. Buie, 86 N.Y.2d 501, 506). In any event, defendant's constitutional right of confrontation was not abridged inasmuch as he had the opportunity to cross-examine the chemist-witness ( see, People v. Vega, 225 A.D.2d 890, 893, lv denied 88 N.Y.2d 943; People v. Torres, 213 A.D.2d 797, 800-801, lv denied 86 N.Y.2d 784).
Next, defendant takes issue with the admission of the tape of the November 24, 1995 conversation since the original tape was distorted and had to be enhanced by making a second tape using a variable speed control recorder. In our view, Rice's testimony that the tape was a complete and accurate reproduction of the subject conversation, augmented with proof that the enhancement did not change the tape's content, provided the requisite foundation for its admission ( see, People v. Ely, 68 N.Y.2d 520, 527).
Defendant also argues that Rice and Police Officer David Townshend should not have been allowed to identify his voice on the tapes due to the People's failure to serve a CPL 710.30 notice. We disagree. By moving to suppress the identification testimony, defendant obviated the need for a CPL 710.30 notice ( see, People v. Kirkland, 89 N.Y.2d 903). Further, the notice was not required since the identifications were confirmatory ( see, People v. Rodriguez, 79 N.Y.2d 445, 449) and there was not a police-arranged identification procedure ( see, Matter of Shellito D., 226 A.D.2d 1075; People v. Bello, 219 A.D.2d 657).
Besides these arguments, defendant maintains that County Court should not have permitted the jury to listen to the tapes during its deliberations as they were not played during the trial. Where a tape was inaudible, we have found this procedure to be error ( see, People v. Beasley, 98 A.D.2d 946, affd 62 N.Y.2d 767). Here, while the jury was provided with a recording device, the record does not indicate that it played the tapes. More importantly, defendant introduced transcripts of the taped conversations into evidence, which transcripts, standing alone, established the tape's audibility ( see, People v. Quinlan, 117 A.D.2d 841, 843, lv denied 67 N.Y.2d 888). Thus, we conclude that any claimed error by County Court in this regard was harmless.
We now address defendant's claim that he was denied effective assistance of counsel due to his attorney's failure to exercise a peremptory challenge to remove a prejudicial juror. As often stated, effective assistance of counsel does not require perfect representation but rather is satisfied when the attorney provides meaningful representation, or stated differently, exhibits reasonable competence ( see, People v. Ford, 86 N.Y.2d 397, 404; People v. Pray, 199 A.D.2d 646, lv denied 83 N.Y.2d 809). While the juror expressed reservations about deciding credibility issues, defense counsel's failure to excuse him did not imperil the integrity of the trial or irreparably prejudice defendant since the juror's sentiments did not indicate that he believed defendant to be guilty or that he harbored an unfavorable opinion of defendant that rendered him incapable of reaching an impartial verdict ( see, People v. Langlois, 192 A.D.2d 877).
Pointing out that the central issue in this case was the identification of his voice on the tapes, defendant further faults his counsel's performance, citing his failure to request an expanded identification charge. Although such a charge may have been warranted, its absence did not seriously compromise defendant's right to a fair trial given County Court's full instructions to the jury regarding its duty to determine credibility and to weigh Rice's credibility in light of her criminal history and interest ( see, People v. Knight, 87 N.Y.2d 873, 874; People v. Snyder, 240 A.D.2d 874, lv denied 91 N.Y.2d 881). Thus, viewing the evidence, law and circumstances of this case in totality as of the time of representation ( see, People v. Baldi, 54 N.Y.2d 137, 147), we find that defendant received meaningful representation since defense counsel made appropriate pretrial motions, presented cogent opening and closing statements, engaged in effective cross-examination and, presented an alibi defense ( see, People v. Nartowicz, 237 A.D.2d 625; People v. Coleman, 235 A.D.2d 928, lv denied 89 N.Y.2d 1033).
The other issues raised by defendant do not require extended discussion. Applying the appropriate standard ( see, People v. Cabey, 85 N.Y.2d 417, 420), the evidence was legally sufficient to support a finding of guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). We reject defendant's challenge to County Court's Sandoval ruling because the court appropriately exercised its discretion by weighing the probative value of the evidence concerning defendant's prior bad acts against the prejudicial impact of such evidence, resulting in a ruling that precluded or limited consideration of some convictions and allowed inquiry regarding those convictions it felt evinced a willingness on defendant's part to place his interest above that of society ( see, People v. Dokes, 79 N.Y.2d 656, 661; People v. Beverly, 220 A.D.2d 881, 884, lv denied 87 N.Y.2d 898). We have reviewed defendant's remaining contentions, finding them either unpreserved for our review or unpersuasive.
Finally, given defendant's lengthy criminal history, the fact that his sentence as a second felony offender was within the applicable statutory parameters (Penal Law § 70.06 [b]; [4] [b]), and County Court's authority to impose consecutive sentences in this instance, we cannot say that County Court abused its discretion in imposing consecutive prison terms of 7 1/2 to 15 years upon defendant ( see, People v. Ramirez, 89 N.Y.2d 444, 451; People v. Naranjo, 89 N.Y.2d 1047, 1049; People v. Randolph, 240 A.D.2d 856, 857, lv denied 91 N.Y.2d 878; People v. Tunstall, 197 A.D.2d 791, 793, lv denied 83 N.Y.2d 811). Accordingly, we decline to disturb the sentence.
Mercure, J. P., and Spain, J., concur.
We agree with the majority's conclusion that defendant's convictions should be affirmed; however, we are of the opinion that the imposition of consecutive sentences aggregating 15 to 30 years for these convictions is harsh and excessive ( see, e.g., People v. Mitchell, 229 A.D.2d 956, 957, lv denied 88 N.Y.2d 1070). Accordingly, we respectfully dissent on this narrow issue.
While County Court was clearly authorized to impose consecutive sentences, and, while the sale of any drugs is totally unacceptable and should not be tolerated in our communities, we are convinced that the imposition of concurrent sentences of 7 1/2 to 15 years is a severe enough penalty not only to punish the conduct for which defendant was convicted but also to discourage others from similar activity. It is also consistent with sentences recently imposed on other second felony offenders convicted of two counts of criminal sale of a controlled substance in the third degree ( see, e.g., People v. Marsh, 248 A.D.2d 743; People v. Wilson, 247 A.D.2d 267, lv denied 91 N.Y.2d 946; People v. Perez, 246 A.D.2d 335; People v. Hillendale, 244 A.D.2d 911; People v. Mitchell, supra; People v. Coleman, 170 A.D.2d 756, lv denied 77 N.Y.2d 993). For these reasons, we would modify the judgment of County Court to provide that defendant's sentences run concurrently.
Peters, J., concurs.
Ordered that the judgment is affirmed.