People v. Gray
| Decision Date | 31 December 2008 |
| Docket Number | KA 05-01402. |
| Citation | 57 A.D.3d 1473,2008 NY Slip Op 10366,870 N.Y.S.2d 672 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. GARY GRAY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Appeal from a judgment of the Supreme Court, Monroe County (Thomas M. Van Strydonck, J.), rendered May 9, 2005. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fifth degree, criminal possession of a controlled substance in the seventh degree and unlawful possession of marihuana.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal possession of a controlled substance in the first degree (Penal Law § 220.21 [former (1)]). Contrary to the contention of defendant, Supreme Court properly refused to suppress evidence obtained through the execution of an eavesdropping warrant. The application in support of the eavesdropping warrant established that "normal investigative procedures have been tried and have failed, or reasonably appear to be unlikely to succeed if tried, or to be too dangerous to employ" (CPL 700.15 [4]; see People v Barber, 269 AD2d 758, 759 [2000]). The police officer's affidavit attached to the warrant application indicated that, although the investigation had been ongoing for several months, traditional investigative measures such as the use of surveillance, confidential informants, telephone toll records, and undercover officers had been unsuccessful in determining the source of the narcotics, one of the stated goals of the investigation. Contrary to defendant's further contention, "[t]he law does not require that all possible investigative techniques, or any particular investigative technique, be tried, or that electronic surveillance be sought only as a last resort" (People v Fonville, 247 AD2d 115, 119 [1998]; see People v Campaigni, 151 AD2d 1010 [1989], lv denied 74 NY2d 845 [1989]).
We reject defendant's contention that the court erred in allowing the People to present testimony concerning the identity of the caller in certain incriminating recorded telephone calls. "A witness may properly testify to his or her opinion of the identification of a speaker's voice, regardless...
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