People v. Hotaling

• Decision Date: 21 January 2016
• Citation: 135 A.D.3d 1171,23 N.Y.S.3d 715
• Parties: The PEOPLE of the State of New York, Respondent, v. Tammy L. HOTALING, Appellant.
• Court: New York Supreme Court — Appellate Division

135 A.D.3d 1171

23 N.Y.S.3d 715

The PEOPLE of the State of New York, Respondent,

v.Tammy L. HOTALING, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Jan. 21, 2016.

Abbie Goldbas, Utica, for appellant.

John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), for respondent.

Before: LAHTINEN, J.P., McCARTHY, EGAN JR., LYNCH and DEVINE, JJ.

LYNCH, J.

Appeal from a judgment of the County Court of Otsego County (Burns, J.), rendered February 21, 2014, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree.

Following her alleged sale of cocaine to a confidential informant (hereinafter CI) during a controlled buy monitored by several nearby law enforcement officers and captured by audio and video recording devices placed in the CI's vehicle, defendant was charged in a single-count indictment with criminal sale of a controlled substance in the third degree. After a jury trial, she was convicted as charged and sentenced, as a second felony offender, to a prison term of seven years, plus two years of postrelease supervision. Defendant appeals.

We affirm. Defendant first maintains that the integrity of the grand jury proceeding was compromised when, in response to a question as to whether he provided his services "for nothing," the CI falsely responded, "Correct." While the presentation of false testimony to the grand jury can impact the integrity of the proceeding (see CPL 210.35[5] ; People v. Pelchat, 62 N.Y.2d 97, 106, 476 N.Y.S.2d 79, 464 N.E.2d 447 [1984] ), the questioning here centered on whether the CI was paid for his services, to which the CI added that he had been paid in the past, but not here. Notably, the People presented the testimony of Michael Ten Eyck, an investigator in the Otsego County Sheriff's Office, who clarified the CI's misstatement by explaining that the CI had agreed to participate in exchange for leniency relative to several traffic tickets. While the CI's statement was incomplete and, thus, misleading, the details of the cooperation agreement pertained only to the collateral issue of the CI's credibility and not the core question for the grand jury to decide as to whether a prima facie case existed (see People v. Hansen, 290 A.D.2d 47, 50–51, 736 N.Y.S.2d 743 [2002], affd. 99 N.Y.2d 339, 756 N.Y.S.2d 122, 786 N.E.2d 21 [2003] ). In view of Ten Eyck's testimony, we perceive no undue prejudice, and a dismissal of the indictment is not warranted (see People v. Charles–Pierre, 31 A.D.3d 659, 659, 818 N.Y.S.2d 303 [2006] ; People v. Hansen, 290 A.D.2d at 50–51, 736 N.Y.S.2d 743 ).

Defendant further alleges that the People committed Brady, Rosario and Ventimiglia violations and the prosecutor made improper comments during summations, effectively depriving her of a fair trial. We are not persuaded. As for the alleged Brady violations, defendant maintains that the People failed to disclose the complete terms of the CI's cooperation agreement and a text message purportedly sent by defendant to the CI initiating the cocaine sale. While defendant failed to preserve this argument by raising a timely objection at trial (see CPL 330.30[1] ; People v. Ross, 43 A.D.3d 567, 569, 841 N.Y.S.2d 173 [2007], lv. denied 9 N.Y.3d 964, 848 N.Y.S.2d 33, 878 N.E.2d 617 [2007] ), the argument is, in any event, without merit. The People clearly have a duty to disclose the terms of any cooperation agreement with a witness and, in fact, did so (see People v. Novoa,

70 N.Y.2d 490, 496–497, 522 N.Y.S.2d 504, 517 N.E.2d 219 [1987] ). Contrary to defendant's argument, the record shows that, in response to defendant's demand to produce, the People disclosed that the CI "was working with the police in exchange for leniency on pending charges." Moreover, this arrangement was detailed during the cross-examination of the CI. As for the text message, the CI's testimony revealed that he received the text message from defendant and then notified the police of her offer to sell him cocaine; therefore, he was not acting as an agent of law enforcement at the time he received the message. It follows that the People were under no obligation to secure, preserve or disclose the text message (see CPL 240.20 ; People v. Smith, 89 A.D.3d 1148, 1150, 931 N.Y.S.2d 803 [2011], lv. denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] ). Moreover, the text message was clearly inculpatory. As such, were this issue before us, we would perceive no Brady or Rosario violations relative to the text message (see People v. Smith, 89 A.D.3d at 1150, 931 N.Y.S.2d 803 ; People v. Burroughs, 64 A.D.3d 894, 898, 882 N.Y.S.2d 751 [2009], lv. denied 13 N.Y.3d 794, 887 N.Y.S.2d 544, 916 N.E.2d 439 [2009] ). Next, we find no merit in defendant's remaining Rosario argument that the People failed to disclose the CI's criminal history. The People's contention that they provided defendant with the CI's latest criminal history prior to trial (see CPL 240.45[1][b] ) is confirmed by the fact that defense counsel cross-examined the CI as to his criminal history.

Defendant's Ventimiglia challenge was also unpreserved because she failed to object to Ten Eyck's testimony suggesting that defendant had engaged in prior criminal activity with the CI. In any event, were this issue properly before us we would find it to be without merit. Although the prosecutor asked open-ended questions that elicited Ten Eyck's response, the prosecutor did not directly ask about defendant's prior acts (see ...