Opinion
KA 00-00902
May 3, 2002.
Appeal from a judgment of Chautauqua County Court (Ward, J.), entered March 13, 2000, convicting defendant after a jury trial of, inter alia, criminal sale of a controlled substance in the third degree (two counts).
SALVATORE C. ADAMO, BUFFALO, FOR DEFENDANT-APPELLANT.
JAMES P. SUBJACK, DISTRICT ATTORNEY, MAYVILLE (TRACEY A. BRUNECZ OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., HAYES, WISNER, SCUDDER, AND KEHOE, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant was convicted following a jury trial of selling cocaine on two separate occasions to different undercover sheriff's deputies in Jamestown. A paid confidential informant set up both transactions. County Court refused to order disclosure of the informant's identity, but nevertheless gave a missing witness charge with respect to the People's failure to call the informant as a witness.
Contrary to defendant's contention, the court properly determined after a hearing outside the presence of the jury that notice pursuant to CPL 710.30 (1)(b) was not required with respect to the viewing of defendant's photograph by one of the two deputies. The deputy viewed the photograph immediately before the first sale for the purpose of identifying the target of the investigation and then viewed the photograph immediately after the first sale for the purpose of confirming the identity of the person who sold him the cocaine ( see People v. Chavys, 263 A.D.2d 964, 965, lv denied 94 N.Y.2d 821; People v. Johnson, 213 A.D.2d 1067, lv denied 85 N.Y.2d 939). He subsequently viewed the photograph on two or three other occasions while preparing for trial only because it was appended to defendant's file ( see People v. Herner, 85 N.Y.2d 877; People v. Jerold, 278 A.D.2d 804, lv denied 96 N.Y.2d 801; People v. Morales, 248 A.D.2d 173, lv denied 92 N.Y.2d 857).
Defendant further contends that, because he interposed an alibi defense, he was entitled to disclosure of the informant's identity. That alibi defense, however, is weak and unconvincing. Although defendant's stepdaughter and wife testified concerning defendant's general routine, they could not say where defendant was on the dates in question. In contrast, the People's case rests on the unequivocal in-court identifications of defendant by the deputies, who separately purchased cocaine from defendant on consecutive days either at the doorway of defendant's home or just outside it. Because of the weakness of the alibi defense and the strength of the People's case, the court did not abuse its discretion in refusing to order disclosure of the informant's identity (see People v. Lloyd, 55 A.D.2d 171, 173-174, affd 43 N.Y.2d 686; People v. Jefferson, 181 A.D.2d 1007, lv denied 80 N.Y.2d 833; see also People v. Goggins, 34 N.Y.2d 163, 172-173, cert denied 419 U.S. 1012).
Defendant's further contention with respect to the court's charge on reasonable doubt is not preserved for our review ( see CPL 470.05; People v. Saunders, 283 A.D.2d 523, lv denied 96 N.Y.2d 924; People v. Uraca, 195 A.D.2d 377, lv denied 82 N.Y.2d 728). In any event, that contention is without merit ( see People v. Antommarchi, 80 N.Y.2d 247, 251-252, rearg denied 81 N.Y.2d 759).
Also without merit is the contention of defendant that he was entitled to a missing witness charge with respect to the officers involved in the investigation who were in the area for surveillance. There is no evidence that those officers were "in a position to make any relevant observations" ( People v. Tavarez, 288 A.D.2d 120, 120, lv denied 97 N.Y.2d 709; see People v. Coleman, 288 A.D.2d 49, 50; People v. Vasquez, 272 A.D.2d 226, lv denied 95 N.Y.2d 872). We further conclude that any error in the missing witness charge given with respect to the informant is harmless ( see People v. Govan, 288 A.D.2d 235). The proof of guilt is overwhelming, and there is no significant probability that defendant would have been acquitted but for the error ( see People v. Crimmins, 36 N.Y.2d 230, 242).
We also conclude that the court's Sandoval compromise was not an abuse of discretion ( see People v. Wheeler, 281 A.D.2d 949, lv denied 96 N.Y.2d 836; People v. Brockway, 277 A.D.2d 482, 485; see generally People v. Walker, 83 N.Y.2d 455, 458-459). The contention of defendant that he was denied effective assistance of counsel is not properly before us because "it rests upon allegations dehors the record" ( People v. Medina, 288 A.D.2d 61, 62; see People v. Ward, 291 A.D.2d 906). Finally, the sentence is not unduly harsh or severe.