                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 16, 2014                   105207
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

ERIC A. JACKSON,
                    Appellant.
________________________________


Calendar Date:   September 9, 2014

Before:   Lahtinen, J.P., Rose, Egan Jr., Lynch and Clark, JJ.

                             __________


     Rebecca L. Fox, Plattsburgh, for appellant.

      Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A.
Douthat of counsel), for respondent.

                             __________


Egan Jr., J.

      Appeal from a judgment of the County Court of Clinton
County (McGill, J.), rendered June 18, 2012, upon a verdict
convicting defendant of the crimes of criminal sale of a
controlled substance in the third degree (two counts), criminal
possession of a controlled substance in the third degree (two
counts), attempted criminal sale of a controlled substance in the
second degree and attempted criminal possession of a controlled
substance in the third degree.

      Defendant was charged in a six-count indictment with
criminal sale of a controlled substance in the third degree (two
counts), criminal possession of a controlled substance in the
third degree (two counts), attempted criminal sale of a
controlled substance in the second degree and attempted criminal
                              -2-                105207

possession of a controlled substance in the third degree. The
charges stemmed from three controlled buys initiated by an
undercover State Police investigator on three separate occasions
in November 2011, all of which occurred in the parking lot of the
Walmart located on State Route 3 in the City of Plattsburgh,
Clinton County. During the first transaction on November 2,
2011, defendant sold the investigator approximately 1.7 grams of
a substance that subsequently tested positive for crack cocaine.
Thereafter, on November 11, 2011, defendant sold the investigator
approximately 6.8 grams of a substance that again tested positive
for crack cocaine. Finally, on November 17, 2011, defendant sold
the investigator approximately 28.1 grams of a substance that
tested negative for crack cocaine. Following a jury trial,
defendant was convicted as charged and thereafter was sentenced –
as a second felony offender – to an aggregate prison term of 23
years followed by a lengthy period of postrelease supervision.
Defendant now appeals.

      Initially, we reject defendant's assertion that County
Court abused its discretion in denying assigned counsel's request
for an adjournment. "The decision of whether to grant an
adjournment is generally committed to the sound discretion of the
trial court and will not be disturbed absent an abuse of that
discretion" (People v Ruffin, 56 AD3d 892, 893 [2008] [citations
omitted]; see People v Pena, 113 AD3d 701, 702 [2014], lv denied
22 NY3d 1201 [2014]). Here, approximately 10 days prior to the
scheduled trial date, defendant was assigned new counsel – the
third attorney to represent him in this matter.1 Although trial
counsel indicated during her first appearance that she was
"hoping" for a one- or two-month adjournment, she assured County
Court that she "[could] be ready for trial as previously
scheduled by [the] [c]ourt," and nothing in the record suggests
that her representation of defendant was in any way impeded by
County Court's denial of the requested adjournment (cf. People v


    1
        Defendant successfully sought removal of his   first
assigned attorney, and counsel's appointed successor   had an
apparent conflict with one of the People's scheduled   witnesses,
prompting County Court to assign a third attorney to   represent
defendant.
                               -3-                105207

Lasso, 115 AD3d 563, 563-564 [2014], lv denied 23 NY3d 1039
[2014]). Accordingly, we perceive no abuse of County Court's
discretion in this regard.

      Nor do we discern any error in County Court's decision to
admit into evidence the three audio recordings of the controlled
buys. "It is well settled that [a]dmissibility of [a] 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 Ebron, 90 AD3d 1243,
1245 [2011], lvs denied 19 NY3d 863, 866 [2012] [internal
quotation marks and citations omitted]; see People v Galunas, 107
AD3d 1034, 1034 [2013]). Such admissibility may be established
by, among other things, "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 Galunas, 107 AD3d at 1034
[internal quotation marks and citation omitted]). Here, the
undercover investigator, who met defendant two months prior to
the subject transactions and who wore the digital recorder and
transmitter during the three face-to-face controlled buys with
defendant, testified that he created two of the three audio
recordings introduced into evidence at trial, indicated that he
had reviewed all three recordings for accuracy, identified
defendant's voice on each of those recordings and established the
underlying chain of custody. Such testimony, in our view,
established a proper foundation for the admission of the audio
recordings into evidence (see id. at 1034-1035). As for
defendant's related claim that the People improperly bolstered
the undercover investigator's identification of defendant as the
seller, even assuming that defendant's objections to the
challenged testimony were preserved for our review2 and had
merit, we would find any error in this regard to be harmless (see
People v Malak, 117 AD3d 1170, 1175 [2014]).




     2
        Defendant failed to object to the testimony offered by
two of the four witnesses at issue.
                              -4-                105207

      Turning to the evidence underlying defendant's convictions,
although defendant's generalized motion to dismiss was
insufficient to preserve his challenge to the legal sufficiency
of the evidence, "this Court's weight of the evidence review
necessarily involves an evaluation of whether all elements of the
charged crime[s] were proven beyond a reasonable doubt at trial"
(People v Forbes, 111 AD3d 1154, 1156 n 4 [2013] [internal
quotation marks and citations omitted]). In this regard,
defendant primarily contends that the convictions as to counts 5
(attempted criminal sale of a controlled substance in the second
degree) and 6 (attempted criminal possession of a controlled
substance in the third degree) cannot stand because the substance
that defendant possessed and sold on November 17, 2011 was not in
fact a controlled substance.

      While a defendant may not be convicted of criminal
possession of a controlled substance or criminal sale of a
controlled substance where scientific testing reveals that the
substance in question is not a controlled substance within the
meaning of Penal Law § 220.00 (5), he or she nonetheless may be
prosecuted and convicted of a crime under one of two alternate
theories, depending upon his or her state of mind. Where a
defendant sells, or possesses with intent to sell, what is not a
controlled substance in the mistaken belief that it is, he or she
may be convicted of attempted criminal possession of a controlled
substance or attempted criminal sale of a controlled substance
(see e.g. Penal Law §§ 110.00, 220.16 [1]; 220.41 [1]). In such
a case, the People bear the burden of proving that the defendant
"mistakenly believed the substance he or she sold was a
controlled substance, when in fact it was not" (People v Alameen,
264 AD2d 937, 938 [1999], lv denied 94 NY2d 819 [1999] [citation
omitted]; see People v Sessions, 181 AD2d 842, 843 [1992], lv
denied 80 NY2d 837 [1992]; cf. People v Culligan, 79 AD2d 875,
876 [1980]). Alternatively, where a defendant possesses or sells
what is not a controlled substance, knowing that to be the case
but representing to the purchaser that it is a controlled
substance, he or she may be convicted of violating Public Health
Law § 3383 (2), which makes it "unlawful for any person to
manufacture, sell or possess with the intent to sell, an
imitation controlled substance." When the People proceed under
this theory, they bear the burden of proving "that the imitation
                              -5-                105207

controlled substance was represented [by the defendant] to be a
controlled substance" (Public Health Law § 3383 [6]).

      In the matter before us, the People chose to indict and
charge defendant with, among other things, attempted criminal
sale of a controlled substance in the second degree (count 5) and
attempted criminal possession of a controlled substance in the
third degree (count 6). As there is no question that the
substance that defendant possessed and sold to the undercover
investigator on November 17, 2011 was not a controlled substance,
the People were required to prove that defendant mistakenly
believed that this substance was in fact crack cocaine. Here,
the People's proof as to defendant's intent and/or mistaken
belief consisted solely of the testimony offered by the
undercover investigator, who indicated that he arranged to
purchase one ounce of crack cocaine from defendant for $1,500 and
that defendant thereafter arrived at the appointed time and place
and handed him a "white chunky substance . . . wrapped in
plastic, similar to the first two [sales]." Such testimony, in
our view, falls short of demonstrating that defendant mistakenly
believed that the substance he possessed and sold on the day in
question was crack cocaine. As the record is otherwise bereft of
any evidence relative to either defendant's intent at the time of
the subject transaction or his mistaken belief that the substance
that he possessed and sold to the undercover investigator was
crack cocaine, defendant's convictions under counts 5 and 6 of
the indictment cannot stand.

      Defendant's remaining contentions do not warrant extended
discussion. Defendant failed to object to County Court's charge
to the jury; accordingly, his present claim – that County Court
improperly instructed the jury as to counts 4, 5 and 6 – is
unpreserved for our review, and we discern no basis upon which to
take corrective action in the interest of justice (see People v
Ramirez, 118 AD3d 1108, 1111 [2014]; People v Fauntleroy, 108
AD3d 885, 887 [2013], lv denied 21 NY3d 1073 [2013]). As for
defendant's assertion that he was denied the effective assistance
of counsel, suffice it to say that counsel made cogent opening
and closing statements, raised appropriate objections throughout
the course of the trial, challenged the admissibility of the
audio recordings of the subject drug transactions and effectively
                              -6-                  105207

cross-examined the People's witnesses. Under these
circumstances, we are satisfied that defendant was afforded
meaningful representation (see People v Green, 119 AD3d 23, 31
[2014], lv denied 23 NY3d 1062 [2014]; People v Fauntleroy, 108
AD3d at 887). Finally, in light of defendant's criminal history,
we do not find the sentence imposed upon the remaining counts of
the indictment to be harsh or excessive.

     Lahtinen, J.P., Rose, Lynch and Clark, JJ., concur.



      ORDERED that the judgment is modified, on the facts, by
reversing defendant's convictions of attempted criminal sale of a
controlled substance in the second degree and attempted criminal
possession of a controlled substance in the third degree under
counts 5 and 6 of the indictment; said counts dismissed and the
sentences imposed thereon vacated; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
