People v. Pray

• Decision Date: 23 February 1984
• Citation: 99 A.D.2d 915,473 N.Y.S.2d 267
• Parties: The PEOPLE of the State of New York, Respondent, v. Russell PRAY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 267

473 N.Y.S.2d 267

99 A.D.2d 915

The PEOPLE of the State of New York, Respondent, v. Russell PRAY, Appellant.

Supreme Court, Appellate Division,

Third Department.

Feb. 23, 1984.

Livingston L. Hatch, Keeseville, for appellant.

Joseph W. Kelley, Dist. Atty., Plattsburgh, for respondent.

Before KANE, J.P., and MAIN, MIKOLL, YESAWICH and HARVEY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Clinton County, rendered October 6, 1982, upon a verdict convicting defendant of two counts of the crime of criminal sale of a controlled substance in the third degree.

Defendant was indicted on two counts of criminal sale of a controlled substance in the third degree (Penal Law, § 220.39, subd. 1) and, after a trial by jury, was found guilty as charged. Defendant was sentenced to concurrent terms of incarceration of three to nine years. On this appeal, defendant raises several grounds of error, none of which require reversal.

First, Trooper Frank Hildebrandt testified that, acting as an undercover agent, he purchased from defendant, on the dates specified in the indictment, a substance later identified in court by State Police chemical analysts as cocaine. Thus, there is no merit to defendant's claim that the People failed to establish a prima facie case as to both counts of the indictment and there was sufficient evidence to support the jury's verdict.

Second, defendant did not make an objection on the ground of voluntariness under CPL 710.30 to the introduction of the taped conversation and the absence of an objection prevents us from reviewing this issue for the first time on appeal (CPL 470.05, subd. 2; 470.15, subd. 1; People v. Travison, 59 A.D.2d 404, 407, 400 N.Y.S.2d 188, affd. 46 N.Y.2d 758, 413 N.Y.S.2d 648, 386 N.E.2d 256, cert. den. 441 U.S. 949, 99 S.Ct. 2174, 60 L.Ed.2d 1053). In any event, where there is no question of voluntariness, the notice specified under CPL 710.30 is not required (see People v. Greer, 42 N.Y.2d 170, 178, 397 N.Y.S.2d 613, 366 N.E.2d 273; People v. Balschweit, 91 A.D.2d 1127, 458 N.Y.S.2d 730).

Third, County Court's failure to give a limiting instruction on the value of the taped conversation and its transcript was not reversible error. The effect of the conversation was ambiguous in that it included slang which might have implicated defendant as being familiar with drug trafficking and, as County Court noted, an instruction to this effect would have been tantamount to characterizing defendant's statements as a confession, which would have destroyed defendant's case. On the other hand, if these statements were ultimately construed as not a confession, such an instruction would have amounted to reversible error (see People v. Greenwaldt, 72 A.D.2d 836, 837-838, 421 N.Y.S.2d 679). Thus, County Court took the prudent course in not characterizing the statements and permitting the jury to draw its own conclusions as to the effect of the...