People v. Reid

• Decision Date: 07 June 2019
• Docket Number: 504,KA 17–00287
• Citation: 101 N.Y.S.3d 793,173 A.D.3d 1663
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Ewan REID, Defendant–Appellant.

173 A.D.3d 1663

101 N.Y.S.3d 793

The PEOPLE of the State of New York, Respondent,

v.Ewan REID, Defendant–Appellant.

504

KA 17–00287

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

Entered: June 7, 2019

JOHN A. HERBOWY, ROME, FOR DEFENDANT–APPELLANT.

JEFFREY S. CARPENTER, DISTRICT ATTORNEY, HERKIMER (MICHELLE K. FASSETT OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by directing that the sentences imposed run concurrently with each other and consecutive to the sentence imposed in Oneida County Court, and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1] ), arising from two separate incidents in which defendant sold crack cocaine to confidential informants. Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence inasmuch as his "motion for a trial order of dismissal was not specifically directed at the alleged errors asserted on appeal" ( People v. Streeter , 166 A.D.3d 1509, 1510, 87 N.Y.S.3d 763 [4th Dept. 2018], lv denied 32 N.Y.3d 1210, 99 N.Y.S.3d 232, 122 N.E.3d 1145 [2019] ; see People v. Pittman , 109 A.D.3d 1080, 1081–1082, 971 N.Y.S.2d 600 [4th Dept. 2013], lv denied 22 N.Y.3d 1043, 981 N.Y.S.2d 376, 4 N.E.3d 388 [2013] ; see generally People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ).

In any event, we reject that challenge. Contrary to defendant's contention, the testimony of the two confidential informants was not incredible as a matter of law, i.e., their testimony was not "manifestly untrue, physically impossible, contrary to experience, or self-contradictory" ( People v. Ponzo , 111 A.D.3d 1347, 1348, 975 N.Y.S.2d 274 [4th Dept. 2013] [internal quotation marks omitted]; see People v. Tuff , 156 A.D.3d 1372, 1374, 68 N.Y.S.3d 273 [4th Dept. 2017], lv denied 31 N.Y.3d 1018, 78 N.Y.S.3d 288, 102 N.E.3d 1069 [2018] ). "Where, as here, witness credibility is of paramount importance to the determination of guilt or innocence, [we] must give ‘[g]reat deference ... [to the] fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor’ " ( People v. Harris , 15 A.D.3d 966, 967, 788 N.Y.S.2d 745 [4th Dept. 2005], lv denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679 [2005], quoting People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ), and we perceive no reason to disturb the jury's credibility determinations (see id. ). In addition, the People introduced audio recordings of the transactions, the testimony of the law enforcement officers who supervised the controlled purchases, monitored the transactions, and made the audio recordings of the events, and expert testimony establishing that the substances sold contained cocaine. Thus, viewing the evidence in the light most favorable to the People (see People v. Gordon , 23 N.Y.3d 643, 649, 992 N.Y.S.2d 700, 16 N.E.3d 1178 [2014] ), we conclude that the evidence is legally sufficient to support the conviction (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Furthermore, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's further contention that the verdict is against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

Defendant contends that County Court erred in admitting in evidence the audio recordings of the subject transactions. We reject that contention. "It is well settled that the determination whether to permit the admission of a recording in evidence lies in the sound discretion of the trial court" ( People v. Dalton , 164 A.D.3d 1645, 1645, 84 N.Y.S.3d 295 [4th Dept. 2018], lv denied 32 N.Y.3d 1170, 97 N.Y.S.3d 624, 121 N.E.3d 252 [2019] ; see People v. Cleveland , 273 A.D.2d 787, 788, 709 N.Y.S.2d 751 [4th Dept. 2000], lv denied 95 N.Y.2d 864, 715 N.Y.S.2d 218, 738 N.E.2d 366 [2000] ), and a "recording must be excluded from evidence only if it is so inaudible and indistinct that the jury would have to speculate concerning its contents" ( Cleveland , 273 A.D.2d at 788, 709 N.Y.S.2d 751 ; see People v. Lopez , 119 A.D.3d 1426, 1428, 989 N.Y.S.2d 759 [4th Dept. 2014], lv denied 25 N.Y.3d 990, 10 N.Y.S.3d 533, 32 N.E.3d 970 [2015]; see also People v. Bennett , 94 A.D.3d 1570, 1570, 943 N.Y.S.2d 371 [4th Dept. 2012], lv. denied 19 N.Y.3d 994, 951 N.Y.S.2d 470, 975 N.E.2d 916 [2012], reconsideration denied 19 N.Y.3d 1101, 955 N.Y.S.2d 556, 979 N.E.2d 817 [2012] ). Here, defendant does not contend that the recordings are inaudible and, contrary to his contention, a chain of custody is "not a requirement [for the admission of audio] recordings" ( People v. Ely , 68 N.Y.2d 520, 527–528, 510 N.Y.S.2d 532, 503 N.E.2d 88 [1986] ). Consequently, we conclude that the court did not abuse its discretion in admitting the recordings in evidence.

We reject defendant's contention that he was denied effective assistance of counsel based on, inter alia, his attorneys' failure to move to suppress the audio recordings of the transactions on audibility grounds. "There can be no denial of effective assistance of ... counsel arising from [defense] counsel's failure to ‘make a motion or argument that has little or no chance of success’ " ( People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005], quoting People v. Stultz , 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004], rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 [2004] ), and our review of the record, including listening to the recordings, establishes that such a motion had little or no chance of success. Viewing the evidence, the law and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). Defendant's further challenges to the assistance provided by defense counsel are based on matters outside the record, therefore they " ‘must be raised by way of a motion pursuant to CPL 440.10 ’ " ( People v. Weaver , 118 A.D.3d 1270, 1272, 988 N.Y.S.2d 346 [4th Dept. 2014], lv denied 24 N.Y.3d 965, 996 N.Y.S.2d 225, ...