People v. Driscoll

• Decision Date: 11 June 1998
• Citation: 251 A.D.2d 759,675 N.Y.S.2d 151
• Parties: , 1998 N.Y. Slip Op. 5887 The PEOPLE of the State of New York, Respondent, v. Daron E. DRISCOLL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 151

675 N.Y.S.2d 151

251 A.D.2d 759, 1998 N.Y. Slip Op. 5887

The PEOPLE of the State of New York, Respondent, v. Daron E. DRISCOLL, Appellant.

Supreme Court, Appellate Division Third Department.

June 11, 1998.

Peter B. Meadow, Woodbourne, for appellant.

James T. Hayden, District Attorney, Elmira, for respondent.

Before MERCURE, J.P., and WHITE, PETERS, SPAIN and CARPINELLO, JJ.

WHITE, Justice.

Appeal from a judgment of the County Court of Chemung County (Castellino, J.), rendered November 15, 1996, upon a verdict convicting defendant of two counts of the crime of criminal sale of a controlled substance in the third degree.

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. ¹ Defendant appeals.

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, 634 N.Y.S.2d 415, 658 N.E.2d 192). 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, 639 N.Y.S.2d 511, lv. denied 88 N.Y.2d 943, 647 N.Y.S.2d 177, 670 N.E.2d 461; People v. Torres, 213 A.D.2d 797, 800-801, 623 N.Y.S.2d 645, lv. denied 86 N.Y.2d 784, 631 N.Y.S.2d 630, 655 N.E.2d 727).

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, 510 N.Y.S.2d 532, 503 N.E.2d 88).

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, 653 N.Y.S.2d 256, 675 N.E.2d 1208). Further, the notice was not required since the identifications were confirmatory (see, People v. Rodriguez, 79 N.Y.2d 445, 449, 583 N.Y.S.2d 814, 593 N.E.2d 268) and there was not a police-arranged identification procedure (see, Matter of Shellito D., 226 A.D.2d 1075, 641 N.Y.S.2d 949; People v. Bello, 219 A.D.2d 657, 631 N.Y.S.2d 714).

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, 471 N.Y.S.2d 383, affd. 62 N.Y.2d 767, 477 N.Y.S.2d 325, 465 N.E.2d 1261). 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, 498 N.Y.S.2d 734, lv. denied 67 N.Y.2d 888, 501 N.Y.S.2d 1040, 492 N.E.2d 1247). 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, 633 N.Y.S.2d 270, 657 N.E.2d 265; People v. Pray, 199 A.D.2d 646, 604 N.Y.S.2d 985, lv. denied 83 N.Y.2d 809, 611 N.Y.S.2d 145, 633 N.E.2d 500). 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, 596 N.Y.S.2d 590).

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, 638 N.Y.S.2d 938, 662 N.E.2d 256; People v. Snyder, 240 A.D.2d 874, 659 N.Y.S.2d 116, lv. denied 91 N.Y.2d 881, 668 N.Y.S.2d 579, 691 N.E.2d 651). 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, 444 N.Y.S.2d 893, 429 N.E.2d 400), 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, 655 N.Y.S.2d 1010; People v. Coleman, 235 A.D.2d 928, 653 N.Y.S.2d 423, lv. denied 89 N.Y.2d 1033, 659 N.Y.S.2d 864, 681 N.E.2d 1311).

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, 626 N.Y.S.2d 20, 649 N.E.2d 1164), 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, 515 N.Y.S.2d 761, 508 N.E.2d 672). 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...