People v. Portanova

• Decision Date: 25 February 1977
• Court: New York Supreme Court — Appellate Division
• Parties: PEOPLE of the State of New York, Respondent, v. Andrew PORTANOVA, Appellant.

Page 123

392 N.Y.S.2d 123

56 A.D.2d 265

PEOPLE of the State of New York, Respondent, v. Andrew PORTANOVA, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Feb. 25, 1977.

Leslie A. Bradshaw, Rochester, for appellant.

Lawrence T. Kurlander, Dist. Atty., Rochester (Edward J. Spires, Rochester, of counsel), for respondent.

Before MARSH, P.J., and MOULE, DILLON, GOLDMAN and WITMER, JJ.

MOULE, Justice.

Defendant appeals from a judgment of conviction entered upon a jury verdict which found him guilty of criminal sales of a controlled substance in the first degree and conspiracy in the first degree. He alleges eight separate points of error.

The facts concerning the background and consummation of the sale of cocaine for which defendant was indicted were testified to by James Valvano, the primary witness for the prosecution, who was a codefendant in the indictment under which defendant was charged and who pleaded guilty to a reduced charge of criminal sale of a controlled substance in the third degree. Valvano testified that he knew defendant for seven years and had met him through a mutual friend, Tom August, who lives in Fort Lauderdale, Florida. On January 28, 1975 Valvano telephoned defendant at August's house in Florida to inform him that certain buyers were interested in purchasing eight ounces of cocaine. Defendant then flew from Florida to Rochester, New York where later that evening defendant transferred to Valvano the cocaine for the sale. During the period from January 29, 1975 through February 3, 1975 arrangements were made by Valvano and defendant for consummation of the sale. On February 3, 1975 Valvano went to the Ramada Inn in Chili, New York where he sold the cocaine to Frank Magooch and two others, all three purchasers being federal agents. In return for the cocaine Valvano received $9,000 in $100 bills and returned to his home with the money. It was then that defendant came over to Valvano's house in order to count the money and check for markings on the bills. Defendant left Valvano's house with $8,000 of the total proceeds of the sale. On February 6, 1975 defendant boarded a flight and returned to Fort Lauderdale, Florida.

These facts were corroborated at trial by the testimony of Valvano's fiancee, Kathy Dougherty, Federal Agent Magooch and Donald Miglioratti, employed by the Drug Enforcement Administration Task Force, who provided surveillance on Valvano on the evening of February 3, 1975. Additionally, the district attorney offered at trial two boxes which were marked Exhibits Nos. 7 and 8 for identification. Exhibit No. 7 contained a total of nine tapes which were marked Exhibits 7-A through 7-I for identification. Exhibit No. 8 contained a total of eight tapes, the record indicating that at least one of these tapes, Exhibit 8-B, was marked for identification. Subsequently, the district attorney offered into evidence five of these tapes (Exhibits 7-A, 7-B, 7-C, 7-D and 8-B) and, in particular, 12 phone conversations recorded thereon. These conversations had been monitored and taped pursuant to a warrant issued by court order and were between Valvano, defendant, Magooch and August during the days prior to and following the February 3rd sale of cocaine. ¹ The conversations were admitted into evidence and heard by the jury.

Defendant's first contention on this appeal is that the sealing of tapes outside of the court's direct supervision, evidence of tampering with tape recordings and breaks in chain of custody all constitute reversible error.

On February 13, 1975 a number of tapes were brought before the same judge who had presided at defendant's trial and he ordered that 'the District Attorney of Monroe County seal said tapes and maintain the custody of said tapes and direct that they not be disturbed except upon a further order of this Court.' The tapes were not sealed in the judge's presence nor were the boxes in which the tapes were eventually sealed brought to the judge. Instead a member of the Monroe County Sheriff's office took the individual tapes to the district attorney's office where he found two boxes and sealed the tapes in those boxes with sealing tape and sealing wax. Defendant objected at trial and asserts on appeal that these tapes were improperly sealed in that they were not sealed in the judge's presence as required by statute.

Criminal Procedure Law, § 700.50(2) reads:

'Immediately upon the expiration of the period of an eavesdropping warrant, the recordings of communications made pursuant to subdivision three of section 700.35 must be made available to the issuing justice and sealed under his directions.'

The issue here involves the interpretation to be accorded the phrase 'under his directions' as set forth in the statute. Defendant asserts that this phrase requires that the tapes be sealed in the presence of or by the justice. We find no support for this conclusion.

The progenitor federal eavesdropping statute (see, U.S.Code, title 18, § 2518(8)(a); see also, People v. Sher, 38 N.Y.2d 600, 381 N.Y.S.2d 843, 345 N.E.2d 314) contains substantially identical provisions. In a case interpreting that statute (United States v. Abraham, 6 Cir., 541 F.2d 624, 627), the court stated:

'We find nothing in the language of § 2518(8)(a) which requires the presence of the judge as the sealing of the recordings takes place. * * * It was the duty of the Judge under the statute to preserve the recordings as possible evidence. This was done by ordering that the surveillance tapes be sealed and placed in the custody of Agent Simon. The statute directs that the recordings be sealed under the judge's direction, not in his presence.'

In People v. Nicoletti, 34 N.Y.2d 249, 356 N.Y.S.2d 855, 313 N.E.2d 336 and People v. Sher, 38 N.Y.2d 600, 381 N.Y.S.2d 843, 345 N.E.2d 314, Supra, two cases primarily relied upon by defendant for support, the tapes in question were never brought before the court for the purpose of receiving directions for sealing nor were the tapes ever sealed by the authorities. Thus, although it is stated in those cases that the 'sealing requirement is to be strictly construed' (34 N.Y.2d at 253, 356 N.Y.S.2d at 857, 313 N.E.2d at 338; see also, 38 N.Y.2d at 603, 381 N.Y.S.2d at 845, 345 N.E.2d at 316), the facts in those cases are clearly distinguishable from those here. Additionally, neither of those cases stands for the proposition that the tapes be sealed by or in the presence of the judge.

Here, the tapes were brought before the court and properly sealed according to its directions. Inasmuch as there was substantial compliance with the literal reading of the statute and defendant presents no support for a contrary holding, the sealing procedure in this case was proper.

With respect to defendant's claim of error due to tampering with tape recordings, he specifically alludes to that part of the trial where the Sheriff's deputy, while offering Exhibit No. 8 into evidence, stated that the box contained seven tapes when upon being unsealed and opened it actually contained eight tapes.

Although no explanation was offered at trial by the deputy as to his miscalculation of the number of tapes contained in the box, we see no reason for concluding that this miscalculation was anything more than just that, a mere error on the part of the witness. In his testimony the deputy did state that the box was in the same condition that he left it in when he sealed it pursuant to the directions of the court on February 13, 1975, thus negating the possibility of tampering from the time the box was sealed until it was opened in court during trial.

Not only did defendant's attorney not object to this occurrence at trial but he failed to pursue the matter at any length during cross examination of the witness. Additionally, only one conversation from one of the eight tapes contained in Exhibit No. 8 was offered and admitted into evidence by the court. With respect to that one conversation, a full and proper foundation was laid as to the unchanged condition of the tape since its sealing, as well as to the identity and accuracy of the particular conversation.

In light of the above it cannot be said that the evidence supports the conclusion that there was tampering with respect to the tapes contained in Exhibit No. 8 nor that there was any error in admitting the one tape contained therein that proved prejudicial to defendant or deprived him of a fair trial.

Defendant's final claim of error under this contention concerns an alleged break in the chain of custody with respect to the handling of Exhibit 7-D which was one of nine tapes contained in the box marked Exhibit No. 7. An investigator testified that he removed this particular tape from the Drug Enforcement Agency's safe on February 5, 1975 and handed it to one Detective Miglioratti, who opened the tape and resealed it that same day. Although not objecting on this ground at trial, defendant now claims that due to the fact that no evidence was presented concerning what Miglioratti did with that tape upon opening it or what transpired until such time as the tape was returned to the safe, the State has failed to establish the necessary chain of custody with respect to not only that one tape but with respect to all of the tapes contained in Exhibit No. 7.

In People v. Connelly, 35 N.Y.2d 171, 174, 359 N.Y.S.2d 266, 269, 316 N.E.2d 706, 708, the Court of Appeals in referring to the 'chain of custody rule' stated that 'when the evidence itself is not patently identifiable or is capable of being replaced or altered, admissibility generally requires that all those who have handled the item 'identify it and testify to its custody and unchanged condition ". (See also, People v. Blanda, 80 Misc.2d 79, 362 N.Y.S.2d 735). However, analysis of a chain of custody must be kept within reasonable limits (People v. Julian, 50 A.D.2d 760, 761, 376 N.Y.S.2d 174, 175). Thus, 'where the circumstances provide reasonable assurances...