People v. Donovan

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before MANGANO
• Citation: People v. Donovan, 530 N.Y.S.2d 174, 141 A.D.2d 835 (N.Y. App. Div. 1988)
• Decision Date: 27 June 1988
• Parties: The PEOPLE, etc., Respondent, v. Scott DONOVAN, Appellant.

Page 174

530 N.Y.S.2d 174

141 A.D.2d 835

The PEOPLE, etc., Respondent, v. Scott DONOVAN, Appellant.

Supreme Court, Appellate Division Second Department.

June 27, 1988.

Marcy Chynsky, Yorktown, for appellant.

Kevin L. Wright, Dist. Atty., Carmel (Mary Jane MacCrae, of counsel), for respondent.

Before MANGANO, J.P., and BRACKEN, BROWN and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from two judgments of the County Court, Putnam County (Sweeny, J.), both rendered August 5, 1987, convicting him 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) under Indictment No. 96/86, and criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree under Indictment No. 97/86, upon jury verdicts, and imposing sentences.

ORDERED that the judgments are affirmed, and the case is remitted to the County Court, Putnam County, for further proceedings pursuant to CPL 460.50(5).

The defendant's claim that preindictment delay denied him due process of law is without merit. After a hearing, the court determined that the delay of 10 or 11 months between the acts which formed the basis for the charges and the defendant's arrest was reasonable, and that the defendant had failed to demonstrate that he was prejudiced by the delay. We agree. Where there is good cause for the delay in prosecuting the defendant, the delay does not constitute a violation of due process ( see, People v. Singer, 44 N.Y.2d 241, 405 N.Y.S.2d 17, 376 N.E.2d 179; People v. Brown, 124 A.D.2d 667, 507 N.Y.S.2d 912, lv. denied 69 N.Y.2d 825, 513 N.Y.S.2d 1031, 506 N.E.2d 542). In the case at bar, the police were involved in a vigorous narcotics investigation and the defendant's arrest would have brought to public attention the fact that there was an undercover officer attempting to infiltrate the drug traffickers in the area, thus denying the police the opportunity to apprehend the large-scale dealer who had been providing the drugs (see, People v. Brown, supra ). In addition, the testimony at the hearing demonstrated that the undercover officer was hospitalized for surgery during this period of delay, so that the police were unable to actively pursue the investigation for a period of two to three months. Moreover, there is no indication in the record that the police delayed arresting the defendant in order to gain a tactical advantage (see, People v. Brown, supra; People v. Bryant, 65 A.D.2d 333, 411 N.Y.S.2d 932, appeal dismissed 46 N.Y.2d 1037, 416 N.Y.S.2d 587, 389 N.E.2d 1107). Finally, the defendant has wholly failed to demonstrate that he suffered prejudice as a result of the delay ( see, People v. Fuller, 57 N.Y.2d 152, 455 N.Y.S.2d 253, 441 N.E.2d 563).

Viewing the evidence in the light most favorable to the prosecution ( see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to support every element of the crimes of which the defendant was convicted. Morover, the resolution of issues of credibility is primarily a task for the jury which saw and heard the witnesses, and its determination is entitled to great weight on appeal and will not be disturbed unless clearly unsupported by the record ( see, People v. Garafolo, 44 A.D.2d 86, 353 N.Y.S.2d 500, appeal after remand 48 A.D.2d 906, 370 N.Y.S.2d 12). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).

Generally, proof of the identity of items admitted into evidence requires that the prosecution establish two elements: that the evidence is the same item that was seized or used in the crime and that it has not been tampered with. Thus, a proper chain of custody must be established ( see, People v. Julian, 41 N.Y.2d 340, 392 N.Y.S.2d 610, 360 N.E.2d 1310). A proper chain of custody is developed when there are reasonable assurances in the record that the evidence sought to be admitted is the same item as was used in the crime and that it is unchanged ( see, People v. Newman, 129 A.D.2d 742, 514 N.Y.S.2d 501, lv. denied 70 N.Y.2d 652, 518 N.Y.S.2d 1045, 512 N.E.2d 571; People v. McCutcheon, 122 A.D.2d 169, 504 N.Y.S.2d 708). As long as these assurances have been established, any deficiencies in the chain of custody go only to the weight to be given to the evidence ( see, People v. Piazza, 121 A.D.2d 573, 503 N.Y.S.2d 623, lv. denied 68 N.Y.2d 916, 508 N.Y.S.2d 1037, 501 N.E.2d 610). The defendant's contention that the chain of custody was not sufficiently established for the admission in evidence at trial of the narcotics which he sold to an undercover officer is without merit. The record demonstrates that the narcotics that the undercover officer had purchased from him were safeguarded in a Sheriff's office, marked with the defendant's name and the date of the purchases, and transferred to the laboratory for analysis where they received laboratory numbers which corresponded to the evidence number already assigned. The chemist at the laboratory determined that the packets contained cocaine, and...