Opinion
June 8, 2001.
(Appeal from Judgment of Supreme Court, Onondaga County, Brunetti, J. — Conspiracy, 2nd Degree.)
PRESENT: PIGOTT, JR., P.J., HAYES, WISNER, SCUDDER AND LAWTON, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of conspiracy in the second degree (Penal Law § 105.15). The conviction is supported by legally sufficient evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). The evidence, viewed in the light most favorable to the People ( see, People v. Contes, 60 N.Y.2d 620, 621), establishes that defendant acted with the intent to commit the crimes of criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the first degree, both class A felonies. In addition, upon our review of the evidence, we conclude that the verdict is not against the weight of the evidence ( see, People v. Bleakley, supra, at 495).
Defendant contends that Supreme Court erred in denying his motion to suppress evidence obtained as a result of eavesdropping warrants. The applications for those warrants are not part of the record on appeal, and thus defendant failed to meet his burden of presenting a sufficient factual record to enable us to review that contention ( see, People v. Larrabee, 201 A.D.2d 924, lv denied 83 N.Y.2d 855; see also, People v. Kinchen, 60 N.Y.2d 772, 772-773; People v. Butler, 255 A.D.2d 119, lv denied 93 N.Y.2d 851).
Defendant further contends that the court erred in denying his request for an audibility hearing. When defendant requested an audibility hearing before listening to the audiotapes, the court ordered the People to provide defendant with the audiotapes and denied defendant's request for an audibility hearing with leave to renew. Defendant did not thereafter renew his request for an audibility hearing, nor did he object to the introduction of the tapes at trial based on their alleged inaudibility. Thus, his present contention is not preserved for our review ( see, CPL 470.05; People v. Alleyne, 154 A.D.2d 473, lv denied 74 N.Y.2d 946). We reject defendant's further contention that the court abused its discretion in allowing the jury to use the transcripts of the audiotapes as an aid while listening to them ( see, People v. Martino, 244 A.D.2d 875, lv denied 92 N.Y.2d 1035, 93 N.Y.2d 855; People v. Gkanios, 199 A.D.2d 411, lv denied 83 N.Y.2d 805).
The court properly allowed the police detective to testify concerning the meaning of coded language used by defendant and codefendants in their telephone conversations ( cf., People v. Vizzini, 183 A.D.2d 302). The detective was in charge of the investigation and had extensive experience in narcotics investigations, and thus he was a qualified expert to testify "concerning the meaning of narcotics code and jargon" ( People v. Vizzini, supra, at 305). The court properly denied defendant's request to charge the lesser included offenses of conspiracy in the fifth and sixth degrees; there is no reasonable view of the evidence that would support a finding that defendant committed the lesser offenses but not the greater ( see, CPL 300.50; People v. Glover, 57 N.Y.2d 61, 63; see also, People v. Sieteski, 241 A.D.2d 926, 928, lv denied 90 N.Y.2d 943). Finally, contrary to defendant's contention, the sentence is not illegal or unconstitutional. The court was free to sentence defendant to a greater term than that promised as part of the pretrial plea bargain offer ( see, People v. Pena, 50 N.Y.2d 400, 411-412, rearg denied 51 N.Y.2d 770, cert denied 449 U.S. 1087).