People v. Valdez-Rodrigues

• Decision Date: 09 January 1997
• Docket Number: VALDEZ-RODRIGUE,A
• Citation: 235 A.D.2d 627,652 N.Y.S.2d 797
• Parties: The PEOPLE of the State of New York, Respondent, v. Armandolso Known as Cake, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 797

652 N.Y.S.2d 797

235 A.D.2d 627

The PEOPLE of the State of New York, Respondent, v. Armando VALDEZ-RODRIGUES, Also Known as Cake, Appellant.

Supreme Court, Appellate Division Third Department.

Jan. 9, 1997.

Eugene P. Devine, Public Defender (Jeanne M. Heran, of counsel), Albany, for appellant.

Sol Greenberg, District Attorney (Kathryn M. Barber, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and CREW, YESAWICH, PETERS and SPAIN, JJ.

MIKOLL, Justice Presiding.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered March 30, 1994, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree (three counts).

Defendant was indicted on one count of criminal sale of a controlled substance in the third degree and three counts of criminal possession of a controlled substance in the third degree. The charges stem from incidents occurring in June 1992 at 42 Clinton Street in the City of Albany when defendant, together with Cindy Colon, was arrested. Defendant was found guilty of all four counts and was sentenced as a persistent felony offender to a prison term of 12 1/2 to 25 years on each count, to be served concurrently. Defendant appeals.

Defendant challenges Supreme Court's denial of his motion to suppress evidence seized as the result of the execution of a search warrant by Albany Police Detective Renna Epting. Defendant's objection is based on the alleged failure to record, orally or in writing, spoken exchanges between Epting and the issuing Judge. Defendant contends that CPL 690.40[1], which requires applications for search warrants to be under oath and recorded, was violated. The record discloses that the warrant was issued based on a written application which was supported by Epting's sworn affidavit. We do not find that Epting's oral synopsis of the application's contents for the Judge violated the strictures of CPL 690.40; nor do we find Epting's inability to recall whether the Judge asked her any questions as indicative that the search warrant was issued on other than the contents of her sworn affidavit.

Defendant further urges that the warrant was not supported by probable cause because the informants' reliability and the bases of their knowledge were not established by reasonable proof in conformity with the Aguilar-Spinelli test (see, Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723). While the informants here had no history of providing prior reliable information to the police, their reliability was established in other ways. The recording of the drug buys was a basis to establish their reliability (see generally, People v. Rodriguez, 52 N.Y.2d 483, 489-490, 438 N.Y.S.2d 754, 420 N.E.2d 946). Epting's first-hand knowledge of the buys, personally monitored by her, also established the informants' reliability. The recovery of heroin from the informants immediately after the "buys" served as further corroboration and provided an adequate basis of knowledge for the informants' source of information (see, People v. Bigelow, 66 N.Y.2d 417, 423-424, 497 N.Y.S.2d 630, 488 N.E.2d 451). We thus conclude that the search warrant was supported by probable cause.

Defendant next raises the argument that the trial evidence was legally insufficient to convict him of a violation of Penal Law § 220.16(12) based on the People's failure to establish defendant's knowledge of the weight of the drugs. The statute requires proof that defendant knowingly and unlawfully possessed "one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of one-half ounce or more" (ibid.). The evidence, viewed in the light most favorable to the People, as it must be (see, People v. Thompson, 72 N.Y.2d 410, 413, 534 N.Y.S.2d 132, 530 N.E.2d 839), supports defendant's conviction. The amount of drugs found was a substantial quantity--almost double the amount required for conviction--leading to the conclusion that anyone handling the drugs would be aware of their weight (see, People v. Sanchez, 86 N.Y.2d 27, 33, 629 N.Y.S.2d 179, 652 N.E.2d 925). The evidence disclosed that defendant transported the drugs from New York City to Albany and into the house, connoting sufficient contact with the drugs and leading to the conclusion that defendant realized their weight. Further, the drugs, when seized, were professionally packaged and other drug paraphernalia was also found with them. These latter facts support the inference that defendant was aware of the amount of cocaine which he possessed (see, People v. Lamont, 227 A.D.2d 873, 874, 643 N.Y.S.2d 243, 245; People v. Graham, 209 A.D.2d 822, 823, 618 N.Y.S.2d 844, lv. denied 84 N.Y.2d 1011, 622 N.Y.S.2d 923, 647 N.E.2d 129).

Defendant also urges that admission into evidence of the tape recording of a drug sale between defendant and the confidential informant was error. The tape was in Spanish. Defendant contends that it is the equivalent of an inaudible tape because it was not translated for the jury by an independent and unbiased translator, leaving the jury to speculate as to its meaning. For the tape to be considered "audible" a competent translation of its meaning is required (see, People v. Rodriguez, 205 A.D.2d 328, 328-329, 613 N.Y.S.2d 21). The record discloses that the tape was translated for the jury by Colon. The accuracy of her translation was not challenged and, therefore, the court did not err in its admission.

We reject defendant's contention that County Court's jury charge was improper because of the impermissible marshaling of evidence by the court on the issue of corroboration of accomplice testimony. By failing to object, defendant did not preserve his right to appeal this question (see, CPL 470.05[2] ). Were we to consider the question, however, we would reject the contention in any event in that we find that County Court placed no undue emphasis on the People's evidence to defendant's detriment (see, People v. Culhane, 45 N.Y.2d 757, 758, 408...