People v. Burroughs

64 A.D.3d 894, 882 N.Y.S.2d 751
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 9, 2009
StatusPublished
Cited by28 cases

This text of 64 A.D.3d 894 (People v. Burroughs) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Burroughs, 64 A.D.3d 894, 882 N.Y.S.2d 751 (N.Y. Ct. App. 2009).

Opinion

Spain, J.P.

Appeal from a judgment of the County Court of Greene County (Lalor, J.), rendered August 12, 2008, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the second degree, criminal possession of a controlled substance in the third degree (three counts) and criminal sale of a controlled substance in the third degree (two counts).

Following a jury trial, defendant was convicted as charged of criminal possession of a controlled substance in the second degree, three counts of criminal possession of a controlled substance in the third degree and two counts of criminal sale of a controlled substance in the third degree based upon evidence that he possessed and sold cocaine to a confidential informant (hereinafter Cl) in the Town of Greenville, Greene County. The evidence at trial established that in March 2007, suspicious that defendant was involved in drug sales, police officers with the New York State Police Community Narcotics Enforcement Team utilized a Cl to engage in two controlled buys on March 13 and 14 at the apartment where defendant resided. Officers observed the Cl, equipped with a sound recording device and provided with prerecorded “buy” money, enter and exit the apartment, and the senior investigator overheard the transactions via an electronic transmitter. Shortly after the second purchase, police executed a search warrant at the apartment and found, among other things, a triple beam scale and a smaller digital scale, syringes and a large bag containing four smaller bags of approximately five ounces of cocaine in the couch in the living [896]*896room. A search of defendant disclosed the prerecorded buy money in his pocket. At trial, the senior investigator, the Cl and another witness testified that it was defendant’s voice on the recordings; the Cl identified defendant, who he knew previously, as the seller and described how defendant had removed the cocaine from under the couch cushions during the second sale. Upon his convictions, defendant was sentenced to an aggregate prison term of 19 years with seven years of postrelease supervision. Defendant now appeals, and we affirm.

We find defendant’s contention that his convictions were not supported by legally sufficient evidence to be unavailing. Initially, defendant argues that the People’s forensic scientist failed to adequately establish that the alleged narcotics were cocaine. The expert testified that each of the three tests she performed confirmed that the substances were cocaine. Contrary to defendant’s assertion, it was not necessary for the expert to establish the accuracy of the known standard she employed in one of three separate tests of the seized substances because she also performed two other tests which did not require comparison with an established standard (see People v Plummer, 24 AD3d 1027, 1029 [2005], lv denied 6 NY3d 837 [2006]; People v Lopez, 266 AD2d 735, 738 [1999], lv denied 94 NY2d 922 [2000]).

As to the admissibility of the voice recordings, the People initially indicated, in response to defendant’s demand to produce, their intent not to use the recordings at trial. However, the People later furnished a copy of the recordings to defendant—months prior to trial—and, at that time, announced their intent to use them. Under such circumstances, defendant suffered no prejudice and it was not an abuse of discretion for County Court to admit the recordings into evidence (see People v Jenkins, 98 NY2d 280, 283-284 [2002]).

As to the recordings’ authenticity, the senior investigator who recorded the transactions testified that he had listened to them as they occurred and later transferred the original recordings to a CD. He testified that the CD recordings were a fair and accurate reproduction of the original recordings of the conversations without any changes, alterations or deletions. He also testified that he recognized the voice on the recordings as that of defendant based upon a short conversation he had with defendant a few months prior to these sales and having overheard these transactions when they occurred. In light of this proof, County Court properly found that the CD recordings had been authenticated (see People v Ely, 68 NY2d 520, 527 [1986]; People v Tillman, 57 AD3d 1021, 1024-1025 [2008]).

[897]*897Moreover, the People sufficiently established that defendant possessed and sold cocaine to the Cl on the days in question. The Cl and another witness testified that they were present when the sales occurred, that it was defendant who actually possessed and sold the cocaine to the Cl and that it was defendant’s voice on the CD recordings. Indeed, their testimony was corroborated by the CD recordings, the testimony of the investigating officers and defendant’s possession of the prerecorded money. Furthermore, with regard to the cocaine found in the couch, the People proved that defendant exercised dominion and control over the small apartment and the couch where the cocaine was seized, which established his constructive possession of it (see Penal Law § 10.00 [8]; People v Martini, 79 NY2d 561, 573 [1992]; People v Arrington, 31 AD3d 801, 803 [2006], lv denied 7 NY3d 865 [2006]).

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Cite This Page — Counsel Stack

Bluebook (online)
64 A.D.3d 894, 882 N.Y.S.2d 751, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-burroughs-nyappdiv-2009.