Opinion
1283 KA 17–00713
01-31-2020
The PEOPLE of the State of New York, Respondent, v. Brandon WARMLEY, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF COUNSEL), FOR DEFENDANT–APPELLANT. LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (AMBER L. KERLING OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF COUNSEL), FOR DEFENDANT–APPELLANT.
LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (AMBER L. KERLING OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial 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] ), arising from his sale of cocaine to a confidential informant (CI) during a controlled buy. We affirm.
Defendant failed to preserve for our review his contention that he was deprived of a fair trial because the two police investigators who identified him at trial lacked personal knowledge to support that testimony (see CPL 470.05[2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Defendant also failed to preserve his contention that he was deprived of a fair trial based on prosecutorial misconduct during summation (see CPL 470.05[2] ; People v. Simmons , 133 A.D.3d 1275, 1277–1278, 20 N.Y.S.3d 787 [4th Dept. 2015], lv denied 27 N.Y.3d 1006, 38 N.Y.S.3d 115, 59 N.E.3d 1227 [2016] ). In any event, defendant's contention is without merit. The comments in which the prosecutor allegedly vouched for the credibility of a witness were fair responses to defense counsel's summation (see People v. Santana , 55 A.D.3d 1338, 1339, 865 N.Y.S.2d 452 [4th Dept. 2008], lv denied 12 N.Y.3d 762, 876 N.Y.S.2d 713, 904 N.E.2d 850 [2009] ). Additionally, even assuming, arguendo, that the prosecutor's comment identifying defendant's voice on an audio recording that was admitted in evidence exceeded the bounds of permissible commentary, we conclude that the comment was not so egregious as to deny defendant a fair trial in light of County Court's instruction to the jury that an attorney's summation is not evidence (see generally People v. Ashwal , 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 [1976] ; People v. Escamilla , 168 A.D.3d 758, 759–760, 91 N.Y.S.3d 197 [2d Dept. 2019], lv denied 33 N.Y.3d 947, 100 N.Y.S.3d 197, 123 N.E.3d 856 [2019] ; People v. Plant , 138 A.D.2d 968, 968, 526 N.Y.S.2d 300 [4th Dept. 1988], lv denied 71 N.Y.2d 1031, 530 N.Y.S.2d 566, 526 N.E.2d 59 [1988] ).
The court properly admitted in evidence the audio recording of the controlled buy. Although some portions of the recording were not entirely clear, they were not "so inaudible and indistinct that the jury would have to speculate concerning [their] contents and would not learn anything relevant from them" ( People v. Jackson , 94 A.D.3d 1559, 1561, 943 N.Y.S.2d 365 [4th Dept. 2012], lv denied 19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111 [2012] [internal quotation marks omitted]; see People v. Johnson , 151 A.D.3d 1462, 1463, 58 N.Y.S.3d 213 [3d Dept. 2017], lv denied 30 N.Y.3d 1106, 77 N.Y.S.3d 5, 101 N.E.3d 391 [2018] ). We further conclude that the recording was properly authenticated inasmuch as one of the police investigators who had listened to the controlled buy testified that he listened to the recording, that it was a fair and accurate copy of what he heard during the buy, and that there were no alterations, additions, or deletions of any kind (see People v. Ely , 68 N.Y.2d 520, 527, 510 N.Y.S.2d 532, 503 N.E.2d 88 [1986] ). The recording was further authenticated by the CI's testimony that it was an accurate and fair reflection of his conversation with defendant during the controlled buy (see generally People v. McGee , 49 N.Y.2d 48, 60, 424 N.Y.S.2d 157, 399 N.E.2d 1177 [1979], cert denied 446 U.S. 942, 100 S.Ct. 2166, 64 L.Ed.2d 797 [1980] ; People v. Carter , 131 A.D.3d 717, 721, 15 N.Y.S.3d 855 [3d Dept. 2015], lv denied 26 N.Y.3d 1007, 20 N.Y.S.3d 548, 42 N.E.3d 218 [2015] ).
We conclude that, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), 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 [1987] ; People v. Nicholas , 130 A.D.3d 1314, 1315, 14 N.Y.S.3d 214 [3d Dept. 2015] ). The People's case hinged on the credibility of the CI, who had an extensive criminal history as well as motive to testify against defendant. The CI had also made a false sworn statement to the police, and his testimony conflicted with that of one of the police investigators. However, those issues were presented to the jury and thoroughly explored by defense counsel on cross-examination, and we afford great deference to the jury's credibility determinations (see generally People v. Reid , 173 A.D.3d 1663, 1664, 101 N.Y.S.3d 793 [4th Dept. 2019] ; People v. Hodge [Appeal No. 1], 147 A.D.3d 1502, 1503, 47 N.Y.S.3d 559 [4th Dept. 2017], lv denied 29 N.Y.3d 1032, 62 N.Y.S.3d 301, 84 N.E.3d 973 [2017] ). We note that the People also presented circumstantial evidence in the form of testimony and an audio recording that corroborated the CI's account of the controlled buy.
Defendant failed to preserve his contention that the court penalized him for asserting his right to a trial because he did not "set forth this issue on the record at the time of sentencing" ( People v. Hodge , 154 A.D.3d 963, 965, 63 N.Y.S.3d 448 [2d Dept. 2017], lv denied 30 N.Y.3d 1105, 77 N.Y.S.3d 4, 101 N.E.3d 390 [2018] ). In any event, we note that "[t]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting [his] right to trial ..., and there is no indication in the record before us that the sentencing court acted in a vindictive manner based on defendant's exercise of the right to trial" ( People v. Pope , 141 A.D.3d 1111, 1112, 33 N.Y.S.3d 812 [4th Dept. 2016], lv denied 29 N.Y.3d 951, 54 N.Y.S.3d 382, 76 N.E.3d 1085 [2017] [internal quotation marks omitted] ).
Finally, we conclude that the sentence is not unduly harsh or severe.