Opinion
988 KA 14–02219
09-28-2018
The PEOPLE of the State of New York, Respondent, v. Ronald M. DALTON, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT–APPELLANT. RONALD M. DALTON, DEFENDANT–APPELLANT PRO SE. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT–APPELLANT.
RONALD M. DALTON, DEFENDANT–APPELLANT PRO SE.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminal sale of a controlled substance in the second degree ( Penal Law § 220.41[1] ), and two counts of criminal possession of a controlled substance in the third degree (§ 220.16[1], [12] ), defendant contends that County Court erred in admitting in evidence a recording of the subject transaction made by law enforcement agents and in allowing the jury to review a transcript of that recording, which was also made by those agents. We reject those contentions. 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 (see People v. Rivera , 257 A.D.2d 172, 176, 691 N.Y.S.2d 4 [1st Dept. 1999], affd 94 N.Y.2d 908, 707 N.Y.S.2d 620, 729 N.E.2d 339 [2000] ; 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 that there is no abuse of discretion in admitting in evidence recordings having parts that "are less than clear, [so long as] they are not ‘so inaudible and indistinct that the jury would have to speculate concerning [their] contents’ and would not learn anything relevant from them" ( People v. Jackson , 94 A.D.3d 1559, 1561, 943 N.Y.S.2d 365 [4th Dept. 2012], lv denied 19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111 [2012] ; see Cleveland , 273 A.D.2d at 788, 709 N.Y.S.2d 751 ). "Moreover, ‘it is also within [the] court's discretion to allow the use of transcripts as an assistance once audibility [is] established ... [The fact] [t]hat the transcripts were not made by an independent third party does not affect the tapes’ admissibility once they are found to be audible ... This is particularly so [where, as, here,] the transcripts themselves are not admitted [in] evidence’ " ( 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 People v. McIntosh, 158 A.D.3d 1289, 1291, 71 N.Y.S.3d 778 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ). Here, we conclude that the court did not abuse its discretion in admitting in evidence the recordings or in permitting the jury to review the transcript while the recording was being played.
Assuming, arguendo, that defendant's initial motion for a trial order of dismissal was sufficiently specific to preserve his contention that the conviction is not supported by legally sufficient evidence (see generally People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ), we conclude that defendant nevertheless failed to preserve his contention for our review because he neglected to renew his motion after presenting evidence (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ). In any event, viewing the evidence in the light most favorable to the People, as we must (see People v. Conway , 6 N.Y.3d 869, 872, 816 N.Y.S.2d 731, 849 N.E.2d 954 [2006] ; People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the evidence "is legally sufficient [inasmuch as] there is [a] valid line of reasoning and permissible inferences that could lead a rational person to conclude that every element of the charged crime[s] has been proven beyond a reasonable doubt" ( People v. Delamota , 18 N.Y.3d 107, 113, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ). Furthermore, viewing the evidence in light of the elements of the crimes 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 conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Assuming, arguendo, that defendant preserved for our review his contention that the court erred in declining to order a new presentence investigation report or to strike certain information from that report (cf. People v. Richardson , 142 A.D.3d 1318, 1319, 38 N.Y.S.3d 325 [4th Dept. 2016], lv denied 28 N.Y.3d 1150, 52 N.Y.S.3d 301, 74 N.E.3d 686 [2017] ; People v. Pedro , 134 A.D.3d 1396, 1397, 21 N.Y.S.3d 653 [4th Dept. 2015] ; see also People v. Jones , 114 A.D.3d 1239, 1242, 980 N.Y.S.2d 670 [4th Dept. 2014], lv denied 23 N.Y.3d 1038, 993 N.Y.S.2d 252, 17 N.E.3d 507 [2014], 25 N.Y.3d 1166, 15 N.Y.S.3d 298, 36 N.E.3d 101 [2015] ), we perceive no reason to disturb the sentence on that ground where, as here, there is no "indication that the court relied upon allegedly erroneous information in the presentence report in imposing the sentence" ( People v. Jaramillo , 97 A.D.3d 1146, 1148, 947 N.Y.S.2d 876 [4th Dept. 2012], lv denied 19 N.Y.3d 1026, 953 N.Y.S.2d 560, 978 N.E.2d 112 [2012] ; see People v. Judd , 111 A.D.3d 1421, 1423, 975 N.Y.S.2d 312 [4th Dept. 2013], lv denied 23 N.Y.3d 1039, 993 N.Y.S.2d 253, 17 N.E.3d 508 [2014] ). To the extent that such information could cause any prejudice to defendant subsequent to the sentencing proceeding, the court noted that the sentencing minutes containing defendant's challenge to the information at issue would be appended to the presentence investigation report, and we conclude that this relief "was sufficient to prevent such prejudice" ( People v. Serrano, 81 A.D.3d 753, 754, 916 N.Y.S.2d 509 [2d Dept. 2011], lv denied 17 N.Y.3d 801, 929 N.Y.S.2d 109, 952 N.E.2d 1104 [2011] ; see People v. Rogers , 156 A.D.3d 1350, 1350, 65 N.Y.S.3d 830 [4th Dept. 2017], lv denied 31 N.Y.3d 986, 77 N.Y.S.3d 664, 102 N.E.3d 441 [2018] ).
Defendant failed to preserve for our review his contention in his pro se supplemental brief that he was deprived of a fair trial by prosecutorial misconduct (see People v. Bastian, 83 A.D.3d 1468, 1468–1469, 919 N.Y.S.2d 724 [4th Dept. 2011], lv denied 17 N.Y.3d 813, 929 N.Y.S.2d 801, 954 N.E.2d 92 [2011] ). In any event, that contention is based on matters outside the record on appeal and thus must be raised by a motion pursuant to CPL article 440 (see People v. Hoeft , 42 A.D.3d 968, 969, 838 N.Y.S.2d 842 [4th Dept. 2007], lv denied 9 N.Y.3d 962, 848 N.Y.S.2d 30, 878 N.E.2d 614 [2007] ; see generally People v. Williams, 48 A.D.3d 1108, 1109, 850 N.Y.S.2d 321 [4th Dept. 2008], lv denied 10 N.Y.3d 872, 860 N.Y.S.2d 498, 890 N.E.2d 261 [2008] ).
We have considered the remaining contentions in defendant's main and pro se supplemental briefs, and we conclude that they lack merit.