People v. Tabora

• Decision Date: 04 April 1988
• Citation: 139 A.D.2d 540,527 N.Y.S.2d 36
• Parties: The PEOPLE, etc., Respondent, v. Roberto TABORA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 36

527 N.Y.S.2d 36

139 A.D.2d 540

The PEOPLE, etc., Respondent, v. Roberto TABORA, Appellant.

Supreme Court, Appellate Division,

Second Department.

April 4, 1988.

Hayward, Parker and Martens, Middletown (Richard L. Parker, of counsel), for appellant.

Roberto Tabora, pro se.

Francis D. Phillips II, Dist. Atty., Goshen (Barbara J. Strauss, of counsel), for respondent.

Before MANGANO, J.P., and THOMPSON, BROWN and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Orange County (Patsalos, J.), rendered March 5, 1984, convicting him of criminal sale of a controlled substance in the third degree, and criminal possession of a controlled substance in the third degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was arrested following the sale of a quantity of cocaine to an undercover police officer who taped the transaction by means of a body recorder. Prior to the sale for which the defendant was arrested, he was alleged to have also sold a quantity of cocaine to a friend of his girlfriend, who in turn sold the drugs to the undercover officer and was arrested. At the behest of the undercover officer, the girlfriend's friend telephoned the girlfriend's apartment, where the defendant was staying, and arranged a further drug deal with the defendant. The undercover officer taped the conversation while listening to it on another telephone. Thereafter, the defendant and his girlfriend proceeded to a specified location and met with the undercover officer who was, at the time, wearing a body recorder. The defendant exchanged a quantity of drugs for $1,400 in prerecorded money and was arrested together with his girlfriend. The girlfriend subsequently pleaded guilty to criminal facilitation in the second degree upon the District Attorney's promise to recommend a sentence of five years' probation in return for her cooperation. She eventually testified for the prosecution at the defendant's trial. The individual who introduced the undercover officer to the defendant, and who was awaiting trial on charges arising from the earlier sale, refused to appear at the defendant's trial, stating that he would invoke his Fifth Amendment rights if questioned about his role in the drug transaction.

On appeal, the defendant raises several issues with respect to the trial court's various evidentiary rulings and the court's charge to the jury. We consider these challenges seriatim.

It is well established that while evidence of unconnected, uncharged criminal conduct is inadmissible if offered only to establish the defendant's criminal propensities, it is admissible if offered for a relevant purpose, and is competent to prove the crime charged by means of establishing motive, intent, absence of mistake or accident, a common scheme or plan, or identity ( see, People v. Vails, 43 N.Y.2d 364, 366, 401 N.Y.S.2d 479, 372 N.E.2d 320; People v. Molineux, 168 N.Y. 264, 61 N.E. 286). Such evidence is also admissible to complete the narrative of the crime charged ( see, People v. Gines, 36 N.Y.2d 932, 373 N.Y.S.2d 543, 335 N.E.2d 850; People v. Brockington, 126 A.D.2d 655, 511 N.Y.S.2d 84) and may also be received in evidence if it is inextricably intertwined with the crime charged, provided its probative value outweighs any possible prejudice ( People v. Vails, supra, 43 N.Y.2d at 368-69, 401 N.Y.S.2d 479, 372 N.E.2d 320). Such evidence in cases involving drug transactions should not be admitted as inextricably intertwined when it can be readily redacted and is not essential to the proof of the crime charged ( see, People v. Crandall, 67 N.Y.2d 111, 114, 500 N.Y.S.2d 635, 491 N.E.2d 1092). However, evidence of prior drug transactions is properly admissible to prove intent, as a matter of necessity, in cases where conduct is at issue which in itself may not be criminal unless accompanied by the requisite unlawful intent (see, People v. Hernandez, 71 N.Y.2d 233, 525 N.Y.S.2d 7, 519 N.E.2d 808). In the case at bar, we conclude that the evidence of the prior uncharged drug sale was admissible, both to prove the defendant's intent in meeting with the undercover officer and to complete the narrative concerning how the transaction came about.

With respect to the taped telephone conversation itself, it was properly admitted into evidence since the caller's consent can be implied from the surrounding circumstances ( see, People v. Bastian, 125 A.D.2d 909, 510 N.Y.S.2d 269, lv. denied 69 N.Y.2d 824, 513 N.Y.S.2d 1030, 506 N.E.2d 541) and one party's consent to the taping of a telephone conversation removes such a taped conversation from the purview of CPL 700.05 and its warrant requirements ( see, People v. McGee, 49 N.Y.2d 48, 424 N.Y.S.2d 157, 399 N.E.2d 1177, cert. denied sub nom. Waters v. New York, 446 U.S. 942, 100 S.Ct. 2166, 64 L.Ed.2d 797; People v. Smith, 69 A.D.2d 845, 415 N.Y.S.2d 68; People v. Goldfeld, 60 A.D.2d 1, 400 N.Y.S.2d 229). Regarding the audibility of the tape itself, the presence of a foreign language on a tape does not in and of itself render it inaudible ( see, People v. Pagan, 80 A.D.2d 924, 437 N.Y.S.2d 384). At an audibility hearing, testimony was presented indicating that a court-appointed interpreter translated the Spanish portions of the tape and vouched for the accuracy of the translation. The court heard testimony respecting the making of the transcription and after listening to the tape, determined that it was audible. The defendant did not object to the court's ruling and we find no reason to disturb it ( see, People v. Mincey, 64 A.D.2d 615, 406 N.Y.S.2d 526, mot. denied 46 N.Y.2d 937, 415 N.Y.S.2d 212, 388 N.E.2d 349). Moreover, it was not improper for the prosecutor to play the tape of the transaction, which had been admitted into evidence, during the People's summation. A prosecutor is afforded great latitute in summation circumscribed by the four corners of the evidence ( see, People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564; Williams v. Brooklyn El. R.R. Co., 126 N.Y. 96, 103, 26 N.E. 1048; People v. Brockington, supra, 126 A.D.2d at 657, 511 N.Y.S.2d 84).

The prosecutor's further remarks upon summation were not improper in light of the evidence adduced at trial and as a proper...