        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

723
KA 09-01038
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EFRAIN L. LOPEZ, ALSO KNOWN AS EFFRAIN LOPEZ,
DEFENDANT-APPELLANT.


CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ERIN TUBBS OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Dennis M. Kehoe, A.J.), rendered February 20, 2009. The judgment
convicted defendant, upon a jury verdict, of criminal sale of a
controlled substance in the third degree and criminal possession of a
controlled substance in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
following a second trial, upon a jury verdict of criminal sale of a
controlled substance in the third degree (Penal Law § 220.39 [1]) and
criminal possession of a controlled substance in the third degree (§
220.16 [1]). The first trial ended in a mistrial based on a
deadlocked jury. Defendant failed to preserve for our review his
contention that the evidence established only that he was a “mere
bystander” to the subject sale of heroin and thus that the evidence is
legally insufficient to establish that he was an accessory to the
crimes, as charged (see People v Hines, 97 NY2d 56, 61, rearg denied
97 NY2d 678). In any event, we reject that contention (see generally
People v Bleakley, 69 NY2d 490, 495). Contrary to defendant’s
contention, the evidence regarding his involvement in the subject sale
did not establish that such involvement was merely “brief and
incidental” (People v Marshall, 72 AD2d 922, 922). Rather, the
evidence established that defendant shared the requisite intent to
commit the charged crimes, and a rational trier of fact “ ‘could have
found the elements of the crime[s] proved beyond a reasonable doubt’ ”
(People v Danielson, 9 NY3d 342, 349). Viewing the evidence in light
of the elements of the crimes as charged to the jury (see id.), we
reject defendant’s contention that the verdict is against the weight
of the evidence. It is well settled that credibility issues are
                                 -2-                           723
                                                         KA 09-01038

“within the province of the jury, and its judgment should not be
lightly disturbed” (People v Harris, 15 AD3d 966, 967, lv denied 4
NY3d 831), and we perceive no reason to disturb the jury’s resolution
of those issues in this case.

     Defendant further contends that the double jeopardy clause
prohibited defendant’s retrial because the evidence at the first trial
was legally insufficient. We reject that contention. Retrial is not
barred by double jeopardy unless “the evidence from the first trial is
determined by the reviewing court to be legally insufficient” (People
v Scerbo, 74 AD3d 1730, 1731, lv denied 15 NY3d 757). Defendant
concedes that “[t]he witnesses, testimony and evidence presented at
the first trial were substantially similar to that presented at the
second trial,” and we previously rejected herein defendant’s challenge
to the legal sufficiency of the evidence at the second trial. In any
event, viewing the facts in the light most favorable to the People
(see People v Contes, 60 NY2d 620, 621), we conclude that the evidence
in the first trial was legally sufficient (see generally Bleakley, 69
NY2d at 495).

     Defendant’s further contention that prosecutorial misconduct on
summation deprived him of a fair trial is preserved for our review
only in part, inasmuch as he failed to object to several of the
allegedly improper statements (see People v Jones, 114 AD3d 1239,
1241). In any event, defendant’s contention lacks merit. We conclude
that “ ‘[a]ny improprieties were not so pervasive or egregious as to
deprive defendant of a fair trial’ ” (id.; see People v Stanley, 108
AD3d 1129, 1131, lv denied 22 NY3d 959; People v Ward, 107 AD3d 1605,
1606-1607, lv denied 21 NY3d 1078).

     Also contrary to defendant’s contention, Supreme Court properly
admitted an audiotape of the subject heroin transaction in evidence
and allowed the jury to use a transcript to assist it in understanding
the audiotape (see People v Cleveland, 273 AD2d 787, 788, lv denied 95
NY2d 864). “A tape recording must be excluded from evidence only if
it is so inaudible and indistinct that the jury would have to
speculate concerning its contents” (id.). 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 Watson, 172 AD2d
882, 883).

     We further reject defendant’s contention that he received
ineffective assistance of counsel based on defense counsel’s failure
to renew his motion for a trial order of dismissal after presenting
evidence. As we determined herein, the evidence is legally
sufficient, and it is well settled that a defendant “is not denied
effective assistance of trial counsel merely because counsel does not
make a motion or argument that has little or no chance of success”
(People v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702).
                                 -3-                          723
                                                        KA 09-01038

     The sentence is not unduly harsh or severe. We have considered
defendant’s remaining contention and conclude that it is without
merit.




Entered:   July 11, 2014                       Frances E. Cafarell
                                               Clerk of the Court
