SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1037
KA 13-02162
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND DEJOSEPH, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
TERRANCE B. HINES, DEFENDANT-APPELLANT.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Cayuga County Court (Thomas G.
Leone, J.), rendered November 7, 2013. The judgment convicted
defendant, after a nonjury trial, of criminal sale of a controlled
substance in the third degree (two counts) and criminal possession of
a controlled substance in the third degree (two counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
after a nonjury trial of two counts each of criminal possession of a
controlled substance in the third degree (Penal Law § 220.16 [1]) and
criminal sale of a controlled substance in the third degree (§ 220.39
[1]). Contrary to defendant’s contention, the conviction is supported
by legally sufficient evidence, i.e., the eyewitness testimony of the
confidential informant and police officers and the forensic testimony
establishing the existence of cocaine (see People v Brown, 2 AD3d
1423, 1424, lv denied 1 NY3d 625). Contrary to defendant’s further
contention, viewing the evidence in light of the elements of the
crimes in this nonjury trial (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495).
We reject defendant’s contention that County Court erred in
refusing to order judicial diversion instead of incarceration.
“Courts are afforded great deference in making judicial diversion
determinations,” and here the court did not abuse its discretion
(People v Williams, 105 AD3d 1428, 1428, lv denied 21 NY3d 1021). We
also reject defendant’s contention that he is entitled to a new trial
based on Brady violations. Even assuming, arguendo, that the
prosecutor delayed in providing defendant with Brady material, we
conclude that a new trial is not warranted inasmuch as defendant
received the material in time for its meaningful and effective use at
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KA 13-02162
trial (see People v Daniels, 115 AD3d 1364, 1365, lv denied 23 NY3d
1019; see generally People v Reese, 23 AD3d 1034, 1036, lv denied 6
NY3d 779).
Defendant further contends that the People failed to disclose
evidence of an allegedly lenient sentence given to the confidential
informant in an unrelated matter in exchange for favorable testimony,
and that such evidence would have impeached the credibility of the
witness whose testimony was determinative of guilt (see Giglio v
United States, 405 US 150, 154). Even assuming, arguendo, that this
evidence constituted Brady/Giglio material, we conclude that
defendant’s right to a fair trial was not violated because he was
provided a meaningful opportunity to use the allegedly exculpatory
evidence to cross-examine the People’s witness (see People v Leavy,
290 AD2d 516, 516-517, lv denied 98 NY2d 698). Likewise, even
assuming, arguendo, that the confidential informant’s probation
violation constituted a “conviction” subject to disclosure under CPL
240.45 (1) (b), we conclude that defendant was fully apprised of this
information in time for a meaningful opportunity to cross-examine the
witness at trial (see People v Clark, 194 AD2d 868, 869, lv denied 82
NY2d 752).
Defendant’s contention that pretrial conversations between the
confidential informant and members of the Finger Lakes Drug Task Force
constitute Rosario material is without merit. There is no indication
that any of the conversations during those meetings were transcribed
or recorded (see People v Barnes, 200 AD2d 751, 751, lv denied 83 NY2d
849), and thus the People had no disclosure obligation pursuant to CPL
240.45 (1) (a). Inasmuch as the People were not required to prove the
quantity of the cocaine to sustain the conviction of the crimes
charged (see People v Kisenik, 285 AD2d 829, 830-831, lv denied 97
NY2d 657), defendant’s contention that the People’s failure to produce
the calibration records of the forensic lab requires reversal is
without merit. Even assuming, arguendo, that the curriculum vitae of
the People’s forensic scientist constituted Rosario material, we
conclude that defendant’s contention in this regard is also without
merit because he failed to establish that he was substantially
prejudiced by the delay in obtaining that document prior to the
commencement of trial (see People v Gardner, 26 AD3d 741, 741, lv
denied 6 NY3d 848).
We also reject defendant’s contention that the court erred in
failing to conduct a Wade/Rodriguez hearing. It is well settled that
“[a] Wade hearing is not required when the witness is so familiar with
the defendant that there is little or no risk that police suggestion
could lead to a misidentification” (People v Carter, 57 AD3d 1017,
1017-1018, lv denied 12 NY3d 781 [internal quotation marks omitted]).
Here, the People established that the confidential informant had known
defendant “for years” prior to the drug transactions at issue. Thus,
the identification of defendant by the confidential informant from a
single photograph was “merely confirmatory,” and no hearing was
required based on any issue of suggestiveness (People v Furman, 294
AD2d 848, 848, lv denied 98 NY2d 696; see People v Rodriguez, 79 NY2d
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KA 13-02162
445, 449-450). With respect to the in-court identification of
defendant by a police witness, the People established that there was
no pretrial identification procedure that would trigger the notice
requirements of CPL 710.30 (see People v Jackson, 94 AD3d 1559, 1560,
lv denied 19 NY3d 1026), and we thus reject defendant’s contention
that the court erred in allowing that witness to testify at trial
based on the People’s alleged failure to comply with CPL 710.30.
By failing to object to the court’s ultimate Sandoval ruling,
defendant failed to preserve for our review his contention that he was
denied a fair trial based on that ruling (see People v Riley, 117 AD3d
1495, 1495-1496, lv denied 24 NY3d 1088). In any event, we conclude
in this nonjury trial that the court’s Sandoval ruling did not
constitute an abuse of discretion (see People v Small, 79 AD3d 1807,
1808, lv denied 16 NY3d 837; see generally People v Hayes, 97 NY2d
203, 207-208). Contrary to defendant’s further contention, the
court’s discretionary determination to deny recusal was not an abuse
of discretion (see People v Evans, 118 AD3d 1476, 1476-1477). We
reject defendant’s further contention that the court erred in
permitting the People to adduce hearsay testimony from a police
officer to connect defendant to the vehicle that was used in the drug
transactions. It is well settled that a court is presumed in a
nonjury trial to have considered only competent evidence (see People v
LoMaglio, 124 AD3d 1414, 1416, lv denied 25 NY3d 1203; People v Sims,
127 AD2d 805, 806, lv denied 70 NY2d 656). In any event, we conclude
that the testimony was properly introduced for the “nonhearsay purpose
of completing the narrative of events and explaining police actions”
(People v Guerrero, 22 AD3d 266, 266, lv denied 5 NY3d 882).
To the extent defendant contends that he was penalized by the
court for exercising his right to a trial, defendant failed to
preserve that contention for our review because he did not raise the
issue at the time of sentencing (see People v Coapman, 90 AD3d 1681,
1683-1684, lv denied 18 NY3d 956). We decline to exercise our power
to review that contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). Finally, the sentence is not unduly
harsh or severe.
Entered: October 9, 2015 Frances E. Cafarell
Clerk of the Court