People v. Wallace

Carpinello, J. (dissenting).

I respectfully dissent. While defense counsel’s cross-examination of John Rice, an agent with the Drug Enforcement Administration (hereinafter DEA), may not have opened the door for the identification of defendant as the secondary supplier of drugs to the confidential informant, any error was harmless for two reasons, namely, the jury already knew that defendant had previously supplied drugs to the confidential informant (hereinafter Cl) and the evidence of guilt was overwhelming (see e.g. People v Ward, 10 AD3d 805, 807 [2004], lv denied 4 NY3d 768 [2005]; People v Rivenburgh, 1 AD3d 696, 700 [2003], lv denied 1 NY3d 579 [2003]; People v Colon, 307 AD2d 378, 381-382 [2003], lv denied 100 NY2d 619 [2003]; People v Arnold, 298 AD2d 895 [2002], lv denied 99 NY2d 580 [2003]; People v McCalla, 243 AD2d 819 [1997], lv denied 91 NY2d 835 [1997]).

With respect to the jury’s prior knowledge of defendant’s status as a supplier, the record reveals that the jury had been specifically informed that both Juan Felix and defendant were drug suppliers to the Cl during Rice’s direct examination. Specifically, the following exchange took place on Rice’s direct examination:

“Q Now, tell us who is [defendant]?
*1046“A [Defendant] was someone that [the Cl] identified as . . . 1
“Q You can answer. Continue.
“A [The Cl] identified several individuals in the Albany area that he claimed he could purchase cocaine from.
“Q Now, would you tell us how it came to be that [the Cl] became a confidential source for the [DEA]?
“A Yes. We were running a separate drug investigation involving an individual by the name of Juan Felix. [The Cl] was bringing an informant of ours to Juan Felix to purchase cocaine from Juan Felix. So [the Cl] was basically middling a deal between my informant at the time and Juan Felix.”

Additionally, on both of the occasions that the People elicited testimony about defendant’s prior sale of drugs to the Cl, limiting instructions were promptly provided by County Court. Moreover, an additional limiting instruction was given by County Court during its final jury charge. In my view, these instructions prevented any undue prejudice to defendant (see generally People v Plummer, 24 AD3d 1027, 1028-1029 [2005], lv denied 6 NY3d 837 [2006]; People v Torres, 19 AD3d 732, 734 [2005], lv denied 5 NY3d 810 [2005]; see also People v Till, 87 NY2d 835, 837 [1995]).

Moreover, upon my examination of the record, I find that the evidence of guilt was overwhelming thereby rendering any error on Rice’s redirect examination harmless (see People v Ward, supra; People v Rivenburgh, supra; People v Colon, supra; People v Arnold, supra; People v McCalla, supra). The Cl unequivocally testified that, after being provided a transmitting device and $2,100 in cash from DEA agents, he purchased IV2 ounces of cocaine from defendant on the night in question in exchange for $1,500. Rice and another DEA agent both testified that each overheard the transaction as it unfolded via this monitoring device. Following the transaction, the Cl confirmed that he purchased drugs from defendant and handed over the drugs, along with the $600 not utilized in the sale. Moreover, the jury was given the ability to listen to a recording of the transaction *1047independent from the testimony of the DEA agents and the Cl.2 This recording, which is sufficiently audible, confirms that a drug transaction transpired between defendant and the Cl. For all these reasons, and because I am unpersuaded by his other contentions on appeal, I believe defendant’s conviction should be affirmed.

Ordered that the judgment is reversed, on the law, and matter remitted to the County Court of Albany County for a new trial.

. A hearsay only objection was raised by defense counsel at this time. In response to this objection, the prosecutor stated, “Your Honor, it’s just background.” County Court overruled the objection; however, it gave a limiting instruction to the jury before permitting a full answer by Rice. No other objection was raised and defendant does not take issue on appeal with this precise line of questioning or ruling. Thus, in my view, the issue of the jury being improperly informed that defendant had previously supplied drugs to the Cl is in fact unpreserved for review (see People v Ward, supra).

. To this end, headphones were admitted into evidence at trial to permit the jury to better hear the audiotape.