People v. Howard

• Decision Date: 07 May 1999
• Citation: 690 N.Y.S.2d 347
• Parties: 1999 N.Y. Slip Op. 4314 PEOPLE of the State of New York, Plaintiff-Respondent, v. Raymond HOWARD, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 347

690 N.Y.S.2d 347

1999 N.Y. Slip Op. 4314

PEOPLE of the State of New York, Plaintiff-Respondent, v. Raymond HOWARD, Defendant-Appellant.

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

May 7, 1999.

Anthony Irrera, Batavia, for defendant-appellant.

David Gann, Batavia, for plaintiff-respondent.

PRESENT: DENMAN, P.J., GREEN, PINE, LAWTON and HURLBUTT, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him of two counts each of criminal possession and criminal sale of a controlled substance in the third degree (Penal Law §§ 220.16, 220.39). We reject his contention that County Court erred in admitting into evidence the testimony of the undercover officer that, immediately following his purchase of cocaine from defendant, a woman greeted defendant by saying, "Hi Rayray." That testimony is not hearsay. It was not an out-of-court statement offered for the truth of the matter asserted (see, Prince, Richardson on Evidence § 8-101 [Farrell 11th ed] ) but rather was offered "as the basis of an inference for another relevant fact", i.e., defendant's identification (Fisch, New York Evidence § 763, at 453 [2d ed 1977]; cf., People v. Jordan, 135 A.D.2d 652, 653, 522 N.Y.S.2d 576, lv. denied 71 N.Y.2d 898, 527 N.Y.S.2d 1008, 523 N.E.2d 315). We further reject the contention of defendant that the People failed to provide him with Brady material. The failure of the police to find latent fingerprints on one of the plastic bags delivered to the undercover officer was not exculpatory (see, People v. Woodrich, 212 A.D.2d 998, 622 N.Y.S.2d 1018, lv. denied 85 N.Y.2d 945, 627 N.Y.S.2d 1007, 651 N.E.2d 932; People v. Owens, 108 A.D.2d 1014, 485 N.Y.S.2d 584). In any event, defendant was afforded a meaningful opportunity to use the allegedly exculpatory information at trial (see, People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349; People v. Rivas, 214 A.D.2d 996, 997, 626 N.Y.S.2d 640, lv. denied 86 N.Y.2d 801, 632 N.Y.S.2d 514, 656 N.E.2d 613). Contrary to the contention of defendant, the evidence is legally sufficient to establish that the substance possessed and sold by him was cocaine (see generally, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). The testimony of the forensic chemist established that the test results were sufficiently authenticated (see, People v. Castle, 251 A.D.2d 891, 674 N.Y.S.2d 840, lv. denied 92 N.Y.2d 923, 680 N.Y.S.2d 465, 703 N.E.2d 277; People v. McTootle, 197 A.D.2d 597, 602 N.Y.S.2d 425, lv. denied 87 N.Y.2d 975, 642 N.Y.S.2d 205, 664 N.E.2d 1268). Nor is the verdict against the weight of the evidence (see, People v. Bleakley, supra, at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672; People v. Christian [appeal No. 1], 139 A.D.2d 896, 527 N.Y.S.2d 1019, lv. denied 71 N.Y.2d 1024, 530 N.Y.S.2d 559, 526 N.E.2d 51). Finally, the court properly denied defendant's application for discovery of the undercover officer's personnel records (see, People v. Gissendanner, 48 N.Y.2d 543, 549-550, ...