People v. Jackson, 2011-11076, Ind. No. 1879/10.

• Court: New York Supreme Court Appellate Division
• Citation: 125 A.D.3d 1002,2 N.Y.S.3d 625,2015 N.Y. Slip Op. 01667
• Docket Number: 2011-11076, Ind. No. 1879/10.
• Parties: The PEOPLE, etc., respondent, v. Anthony T. JACKSON, appellant.
• Decision Date: 25 February 2015

125 A.D.3d 1002
2 N.Y.S.3d 625
2015 N.Y. Slip Op. 01667

The PEOPLE, etc., respondent
v.
Anthony T. JACKSON, appellant.

2011-11076, Ind. No. 1879/10.

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

Feb. 25, 2015.

Thomas T. Keating, Dobbs Ferry, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg, Jason R. Richards, and Joseph Mogelnicki of counsel), for respondent.

MARK C. DILLON, J.P., RUTH C. BALKIN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.

Opinion

125 A.D.3d 1002

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robbins, J.), rendered November 9, 2011, convicting him of murder in the second degree (three counts), robbery in the first degree (three counts), robbery in the second degree, burglary in the first degree (three counts), burglary in the second degree, kidnapping in the first degree, kidnapping in the second degree, and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

125 A.D.3d 1003

ORDERED that the judgment is affirmed.

The defendant's contentions that his constitutional rights were violated by the admission of an inmate informant's testimony, including testimony about his passing of certain notes that the defendant wrote to another inmate, are unpreserved for appellate review, as he did not object to the admission of this evidence on any constitutional ground (see CPL 470.05 [2 ]; People v. Iannelli, 69 N.Y.2d 684, 685, 512 N.Y.S.2d 16, 504 N.E.2d 383 ). In any event, where an informer, such as the one here, works independently of the prosecution and provides information on his own initiative, and the government's role is limited to the passive receipt of such information, the informer is not an agent of the government (see People v. Cardona, 41 N.Y.2d 333, 335, 392 N.Y.S.2d 606, 360 N.E.2d 1306 ; People v. Corse, 73 A.D.3d 1208, 1209, 902 N.Y.S.2d 599 ;

2 N.Y.S.3d 627

People v. Nicholas, 199 A.D.2d 425, 605 N.Y.S.2d 344 ; People v. Boswell, 193 A.D.2d 690, 598 N.Y.S.2d 34 ; People v. Halstead, 180 A.D.2d 818, 580 N.Y.S.2d 413 ; see also United States v. Birbal, 113 F.3d 342, 346 [2d Cir.] ).

Evidence of the notes written in prison by the defendant to another inmate, also accused of involvement in the instant crimes, suggesting that an eyewitness be harmed, were properly admitted into evidence, as this evidence was probative of the issue of the defendant's consciousness of guilt (see People v. Green, 92 A.D.3d 953, 939 N.Y.S.2d 520 ; People v. Myrick, 31 A.D.3d 668, 669, 818 N.Y.S.2d 287 ).

The defendant's further contention that there was no proper foundation for the admission of his prison notes is without merit. Circumstantial evidence, such as that provided here by an inmate and a handwriting expert, satisfied the requirement that a writing be authenticated before it may be introduced (see People v. Dunbar Contr. Co., 215 N.Y. 416, 109 N.E. 554 ; People v. Jean–Louis, 272 A.D.2d 626, 627, 709 N.Y.S.2d 101 ; People v. Murray, 122 A.D.2d 81, 82, 504 N.Y.S.2d 228 ).

The defendant's objections to the admission into evidence of his telephone conversations with his girlfriend, which had been recorded by prison authorities, were made solely on the grounds that the tapes were “unfairly prejudicial,” and were not “clearly inculpatory” so as to constitute admissions. Therefore, objections to this evidence on other grounds are unpreserved for appellate review (see CPL 470.05[2] ; People v. Ianelli, 69 N.Y.2d at 685, 512 N.Y.S.2d 16, 504 N.E.2d 383 ; People v. White, 238 A.D.2d 530, 657 N.Y.S.2d 911 ). In any event, the tapes were properly admitted into evidence, as there was no evidence that the girlfriend was acting as an agent...