The Court is of the opinion that based upon the officers' observations, coupled with reliable information from the customer in conjunction with the defendant's statements that he has cocaine on his person and that he "cracked it" [sic] provided probable cause to arrest and conduct a search incident to such lawful arrest. Where a defendant's arrest is supported by probable cause, evidence discovered during the search of his person incident to that arrest is clearly admissible (see, People v. Rendon, 273 A.D.2d 616). The fact that police asked and the defendant agreed to retrieve the drugs from his buttocks is of no moment and does not invalidate the basis upon which the defendant was searched.
Nevertheless, we conclude that any error in admitting the challenged testimony was harmless in light of the otherwise overwhelming evidence of defendant's guilt and because there was no significant probability that the error in admitting the testimony contributed to the conviction (see Reddick, 164 A.D.3d at 527; see generally People v Crimmins, 36 N.Y.2d 230, 241-242 [1975]). Contrary to defendant's further contention, we conclude that the People established a sufficient foundation for the admission in evidence of recordings of telephone calls made by defendant while he was incarcerated (see generally People v Ely, 68 N.Y.2d 520, 527-528 [1986]; People v Sostre, 172 A.D.3d 1623, 1625 [3d Dept 2019], lv denied 34 N.Y.3d 938 [2019]; People v Bell, 5 A.D.3d 858, 861 [3d Dept 2004]; People v Rendon, 273 A.D.2d 616, 618 [3d Dept 2000], lv denied 95 N.Y.2d 968 [2000]). The content of the recordings established defendant's identity as the caller, and the testimony of the individual in charge of maintaining the jail's recording system established that the recordings were "complete and accurate reproduction[s] of the conversation[s] and [that they had] not been altered" (Ely, 68 N.Y.2d at 527).
Nevertheless, we conclude that any error in admitting the challenged testimony was harmless in light of the otherwise overwhelming evidence of defendant's guilt and because there was no significant probability that the error in admitting the testimony contributed to the conviction (see Reddick, 164 AD3d at 527; see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]). Contrary to defendant's further contention, we conclude that the People established a sufficient foundation for the admission in evidence of recordings of telephone calls made by defendant while he was incarcerated (see generally People v Ely, 68 NY2d 520, 527-528 [1986]; People v Sostre, 172 AD3d 1623, 1625 [3d Dept 2019], lv denied 34 NY3d 938 [2019]; People v Bell, 5 AD3d 858, 861 [3d Dept 2004]; People v Rendon, 273 AD2d 616, 618 [3d Dept 2000], lv denied 95 NY2d 968 [2000]). The content of the recordings established defendant's identity as the caller, and the testimony of the individual in charge of maintaining the jail's recording system established that the recordings were "complete and accurate reproduction[s] of the conversation[s] and [that they had] not been altered" (Ely, 68 NY2d at 527).
Nevertheless, we conclude that any error in admitting the challenged testimony was harmless in light of the otherwise overwhelming evidence of defendant's guilt and because there was no significant probability that the error in admitting the testimony contributed to the conviction (seeReddick , 164 A.D.3d at 527, 82 N.Y.S.3d 79 ; see generallyPeople v. Crimmins , 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ). Contrary to defendant's further contention, we conclude that the People established a sufficient foundation for the admission in evidence of recordings of telephone calls made by defendant while he was incarcerated (see generallyPeople v. Ely , 68 N.Y.2d 520, 527-528, 510 N.Y.S.2d 532, 503 N.E.2d 88 [1986] ; People v. Sostre , 172 A.D.3d 1623, 1625, 100 N.Y.S.3d 768 [3d Dept. 2019], lv denied 34 N.Y.3d 938, 109 N.Y.S.3d 726, 133 N.E.3d 429 [2019] ; People v. Bell , 5 A.D.3d 858, 861, 773 N.Y.S.2d 491 [3d Dept. 2004] ; People v. Rendon , 273 A.D.2d 616, 618, 709 N.Y.S.2d 698 [3d Dept. 2000], lv denied 95 N.Y.2d 968, 722 N.Y.S.2d 486, 745 N.E.2d 406 [2000] ). The content of the recordings established defendant's identity as the caller, and the testimony of the individual in charge of maintaining the jail's recording system established that the recordings were "complete and accurate reproduction[s] of the conversation[s] and [that they had] not been altered" ( Ely , 68 N.Y.2d at 527, 510 N.Y.S.2d 532, 503 N.E.2d 88 ).
“Admissibility of tape-recorded conversation requires proof of the accuracy or authenticity of the tape by ‘clear and convincing evidence’ establishing ‘that the offered evidence is genuine and that there has been no tampering with it’ ” ( People v. Ely, 68 N.Y.2d 520, 527, 510 N.Y.S.2d 532, 503 N.E.2d 88 [1986], quoting People v. McGee, 49 N.Y.2d 48, 59, 424 N.Y.S.2d 157, 399 N.E.2d 1177 [1979],cert. denied sub nom. Waters v. New York, 446 U.S. 942, 100 S.Ct. 2166, 2167, 64 L.Ed.2d 797 [1980];see People v. Ebron, 90 A.D.3d 1243, 1245, 938 N.Y.S.2d 352 [2011],lvs. denied19 N.Y.3d 863, 866, 947 N.Y.S.2d 412, 414, 970 N.E.2d 435, 437 [2012];People v. Tillman, 57 A.D.3d 1021, 1024, 867 N.Y.S.2d 793 [2008] ). “Among other methods, admissibility may be demonstrated by the testimony of a witness to the conversation or to its recording, or by evidence identifying the speakers and establishing the chain of custody of the recording and its unchanged condition” ( People v. Rendon, 273 A.D.2d 616, 618, 709 N.Y.S.2d 698 [2000],lv. denied95 N.Y.2d 968, 722 N.Y.S.2d 486, 745 N.E.2d 406 [2000];see People v. Ely, 68 N.Y.2d at 527–528, 510 N.Y.S.2d 532, 503 N.E.2d 88).
denied15 N.Y.3d 956, 917 N.Y.S.2d 116, 942 N.E.2d 327 [2010];People v. Tillie, 239 A.D.2d 670, 671, 657 N.Y.S.2d 791 [1997],lv. denied91 N.Y.2d 881, 668 N.Y.S.2d 580, 691 N.E.2d 652 [1997] ). Thus, the evidence discovered incident to defendant's lawful arrest was admissible ( see People v. Rendon, 273 A.D.2d 616, 618, 709 N.Y.S.2d 698 [2000],lv. denied95 N.Y.2d 968, 722 N.Y.S.2d 486, 745 N.E.2d 406 [2000] ).
Contrary to defendant's further contention, the People established a sufficient foundation for the admission in evidence of tape recordings of telephone conversations between defendant and the victim and between defendant and the victim's boyfriend while defendant was incarcerated ( see generally People v Ely, 68 NY2d 520, 527-528; People v Bell, 5 AD3d 858, 861; People v Rendon, 273 AD2d 616, 618, lv denied 95 NY2d 968). With respect to the conversation between defendant and the victim, we note that the victim testified, without contradiction, concerning her familiarity with defendant's voice and her ability to recognize it ( see People v Arena, 48 NY2d 944, 945).
A warrant is not required to inspect defendant's personal effects, where, as here, they "`are immediately seized upon arrival at the jail, held under the defendant's name in the "property room" of the jail, and at a later time searched and taken for use at the subsequent criminal trial'" ( People v Natal, 75 NY2d 379, 383, quoting United States v Edwards, 415 US 800, 807). Furthermore, after being inventoried and observed by law enforcement officers incident to a lawful arrest, the cellular telephone was properly subpoenaed for use in grand jury proceedings, not as a discovery device, and the subpoena was properly made returnable before the grand jury ( see generally People v Natal, 75 NY2d at 385). We also find no merit to defendant's contentions with regard to the admissibility of the tape-recorded evidence ( see People v Ely, 68 NY2d 520, 522; People v Rendon, 273 AD2d 616, 618, lv denied 95 NY2d 968). Nor do we find that County Court abused its discretion in making its Sandoval ruling. The record demonstrates that the court weighed appropriate considerations and balanced the prejudicial effect of defendant's prior convictions against their probative value on the issue of credibility ( see People v Hayes, 97 NY2d 203, 208; People v Bennette, 56 NY2d 142, 146; People v Sandoval, 34 NY2d 371).
Accordingly, there was no reasonable possibility that the verdict was affected by any error with respect to the People's failure to provide CPL 710.30 notice regarding Duda's review of the recordings and, thus, any such error would be harmless ( see People v Thompson, 306 AD2d 758, 760, lvs denied 1 NY3d 581; People v Rufin, supra at 868-869; see also People v Harris, 80 NY2d 796, 798). Similarly lacking in merit is defendant's claim that the foundation for admission of the two tape recordings was inadequate. It is well settled that "[a]dmissibility of tape-recorded conversation requires proof of the accuracy or authenticity of the tape by `clear and convincing evidence' establishing `that the offered evidence is genuine and that there has been no tampering with it'" ( People v Ely, 68 NY2d 520, 527, quoting People v McGee, 49 NY2d 48, 59, cert denied sub nom. Waters v New York, 446 US 942; accord People v Rendon, 273 AD2d 616, 618, lv denied 95 NY2d 968). At trial, the CI testified that she had listened to the recording of the first arranged buy and "the whole tape" of the second buy on the day that she took the stand, she identified all of the voices on both tapes at trial, including that of defendant, and she stated that each recording "fairly and accurately capture[d]" the conversations that took place during the buys. Duda and Campbell similarly authenticated the recordings.
Defendant's second assertion that a police officer improperly identified him as the voice he heard when Drabik allegedly called defendant on May 1, 2003 and May 6, 2003 is without merit. A witness may properly testify to his or her opinion of the identification of a speaker's voice, regardless of whether the witness became familiar with that voice before or after the identifying conversation occurred ( see People v Lynes, 49 NY2d 286, 291; People v Rendon, 273 AD2d 616, 618, lv denied 95 NY2d 968). County Court properly left to the jury the role of weighing the probative value of the police officer's opinion testimony.