Opinion
March 21, 2001.
Appeal from Judgment of Supreme Court, Onondaga County, Brunetti, J. — Criminal Sale Controlled Substance, 1st Degree.
BEFORE: HAYES, J. P., WISNER, SCUDDER, KEHOE AND BURNS, JJ.
Judgment unanimously affirmed. Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of various drug-related offenses. Upon our review of the record, we conclude that the verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). Defendant contends that the People failed to establish an adequate foundation for the admissibility of the audiotapes because he was not properly identified on the tapes. We disagree. The testimony of two police officers identifying defendant's voice on the tapes provided an adequate foundation ( see, People v. Rendon, 273 A.D.2d 616, 618-619; People v. Godley, 130 A.D.2d 791, 793, lv. denied 70 N.Y.2d 750; see generally, People v. Ely, 68 N.Y.2d 520, 527-528). Defendant contends that he was prejudiced by the identification testimony of those officers because the jury would believe that the officers were familiar with defendant from drug-related activities. Although those officers were narcotics officers, their testimony did not indicate that they were familiar with defendant from any drug-related activities and thus defendant was not prejudiced. Defendant further contends that Supreme Court erred in allowing transcripts of the audiotapes in evidence. Once the audibility of an audiotape is established, it is within the trial court's discretion whether to admit transcripts as an aid to the jury ( see, People v. Warner, 126 A.D.2d 788, 789, lv. denied 69 N.Y.2d 887).
Here, defendant does not contend that the audiotapes were inaudible, and we conclude that the court did not abuse its discretion in allowing the jury to use the transcripts of the audiotapes as an aid while listening to them ( see, People v Martino, 244 A.D.2d 875, lv. denied 92 N.Y.2d 1035, 93 N.Y.2d 855; People v. Gkanios, 199 A.D.2d 411, lv. denied 83 N.Y.2d 805). Contrary to defendant's contention, the court was not required to have an independent third party prepare transcripts from the audiotapes ( see, People v. Reynolds, 192 A.D.2d 320, 321, lv denied 81 N.Y.2d 1079; People v. Watson, 172 A.D.2d 882, 883).
Defendant failed to preserve for our review his contention that he was not provided with notice of the voice identifications pursuant to CPL 710.30 ( see, CPL 470.05). In any event, such notice was not required where, as here, the identifications by the officers were merely confirmatory ( see, People v. Deleon, 273 A.D.2d 27, 28, lv. denied ___N.Y.2d___ [decided Nov. 20, 2000]; People v. Van Wallendael, 259 A.D.2d 716, lv denied 93 N.Y.2d 903; People v. Rodriquez, 247 A.D.2d 841, 842, lv denied 91 N.Y.2d 977). The prosecutor's use of a chart during summation did not deprive defendant of a fair trial ( see, People v. Smith, 209 A.D.2d 996, 997, lv. denied 85 N.Y.2d 914; see generally, People v. Potter, 255 A.D.2d 763, 767).
We reject the contention of defendant that he received ineffective assistance of counsel. Defendant failed to establish that he was prejudiced by defense counsel's failure to move to suppress the audiotapes or to sever his trial from that of his codefendants ( see, People v. Eldridge, 224 A.D.2d 983, 984). The court advised defendant and his codefendants that multiple motions were not necessary, and the court reviewed the issues of suppression and severance and denied all motions relating to those issues. In addition, defendant's "simple disagreement" with defense counsel's trial strategies does not constitute ineffective assistance of counsel ( People v. Rivera, 71 N.Y.2d 705, 709).
Defendant was not denied a fair trial by prosecutorial misconduct during summation. Many of the alleged instances of misconduct are unpreserved for our review ( see, CPL 470.05), and the remaining alleged instances were fair response to defense counsel's comments on summation regarding the credibility of the witnesses ( see, People v. Halm, 81 N.Y.2d 819, 821; People v. Pepe, 259 A.D.2d 949, 950, lv. denied 93 N.Y.2d 1024).
Finally, the aggregate sentence of 27½ years to life imprisonment, which is less than the maximum allowed, is not unduly harsh or severe.