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

553
KA 11-00095
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY C. JACKSON, JR., DEFENDANT-APPELLANT.


PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.

CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (HARMONY A. HEALY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered December 14, 2010. The judgment convicted
defendant, upon a jury verdict, of criminal sale of a controlled
substance in the second degree, criminal sale of a controlled
substance in the third degree 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
following a jury trial of one count each of criminal sale of a
controlled substance in the second degree (Penal Law § 220.41 [1]) and
criminal sale of a controlled substance in the third degree (§ 220.39
[1]), and two counts of criminal possession of a controlled substance
in the third degree (§ 220.16 [1]). The conviction arises out of
defendant’s sale of cocaine to a police informant on two separate
occasions on a single day. Defendant rejected a plea offer that would
have subjected him to a local sentence of one year in jail, and the
matter proceeded to a trial that resulted in a hung jury. Defendant
thereafter was convicted of the above crimes following a retrial.

     We reject defendant’s contention that County Court’s pretrial
Molineux ruling constitutes an abuse of discretion (see People v
Molineux, 168 NY 264). The court thereby denied the People’s request
to admit evidence of a prior uncharged drug sale by defendant to the
informant, but ruled that such evidence could be admitted if defendant
opened the door to it at trial. Although evidence of the prior
uncharged drug sale was not admitted at trial, defendant asserts that
he would have testified if not for the court’s improper conditional
ruling. We conclude that the court’s ruling was proper (see People v
Rojas, 97 NY2d 32, 36-38; People v Cimino, 49 AD3d 1155, 1156, lv
denied 10 NY3d 861; People v Ortiz, 259 AD2d 979, 980, lv denied 93
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                                                        KA 11-00095

NY2d 1024). We further conclude that the court properly allowed the
People to introduce evidence at trial that defendant had offered to
pay the informant $5,000 if the informant did not testify at the
retrial. It is well settled that “[e]vidence that a defendant
attempted to procure false testimony or to corrupt a witness is
generally admissible as evidence of consciousness of guilt” (People v
Violante, 144 AD2d 995, 996, lv denied 73 NY2d 897, citing People v
Davis, 43 NY2d 17, 26, cert denied 435 US 998, rearg dismissed 61 NY2d
670; see People v Hendricks [appeal No. 1], 4 AD3d 798, 799, lv denied
2 NY3d 800).

     Defendant further contends that the court should have precluded
three police officers from offering identification testimony at trial
based on the People’s failure to comply with the notice requirements
of CPL 710.30. That contention is unpreserved for our review (see CPL
470.05 [2]; People v Pagan, 248 AD2d 325, affd 93 NY2d 891), and in
any event lacks merit. CPL 710.30 applies to “ ‘in-court
identifications predicated on earlier police-arranged confrontations
between a defendant and an eyewitness, typically involving the use of
lineups, showups or photographs, for the purpose of establishing the
identity of the criminal actor’ ” (People v Gee, 286 AD2d 62, 72, affd
99 NY2d 158, rearg denied 99 NY2d 652, quoting People v Gissendanner,
48 NY2d 543, 552; see generally People v Peterson, 194 AD2d 124, 128,
lv denied 83 NY2d 856). Where, as here, “there has been no pretrial
identification procedure and the defendant is identified in court for
the first time, the defendant is not [thereby] deprived of a fair
trial because [defendant] is able to explore weaknesses and
suggestiveness of the identification in front of the jury” (People v
Madison, 8 AD3d 956, 957, lv denied 3 NY3d 709 [internal quotation
marks omitted]).

     Defendant failed to preserve for our review his contention that
the People improperly attempted to elicit identification testimony
from a person present when the drug sales took place (see CPL 470.05
[2]). We note in any event that the witness in question did not in
fact make an in-court identification of defendant. Defendant also
failed to preserve for our review his contention that the court
punished him for exercising his constitutional right to a trial by
sentencing him to five years in prison rather than to the one year in
jail offered during pretrial plea negotiations (see People v Brink,
78 AD3d 1483, 1485, lv denied 16 NY3d 742, 828; People v Dorn, 71 AD3d
1523, 1523-1524). In any event, as the Court of Appeals has noted, “a
State may encourage a guilty plea by offering substantial benefits,
notwithstanding the fact that every such instance is bound to have the
concomitant effect of discouraging a defendant’s assertion of his
trial rights” (People v Pena, 50 NY2d 400, 411-412, rearg denied 51
NY2d 770, cert denied 449 US 1087). Here, our “review of the record
shows no retaliation or vindictiveness against the defendant for
electing to proceed to trial” (People v Shaw, 124 AD2d 686, 686, lv
denied 69 NY2d 750). Nor is the sentence unduly harsh or severe.
Although the court could have imposed consecutive sentences totaling
19 years of imprisonment on the two counts of criminal sale of a
controlled substance, the court instead imposed concurrent sentences
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                                                         KA 11-00095

with a maximum of 5 years of imprisonment. We also note that
defendant refused to accept responsibility for his crimes and that,
while these charges were pending, he was convicted of other criminal
charges in Bronx County.

     We further conclude that the court did not err in allowing the
People to introduce audio recordings of the controlled buys. Although
portions of the recordings are less than clear, they are not “so
inaudible and indistinct that the jury would have to speculate
concerning [their] contents” and would not learn anything relevant
from them (People v Cleveland, 273 AD2d 787, 788, lv denied 95 NY2d
864; see People v Rivera, 257 AD2d 172, 176, affd 94 NY2d 908).
Finally, viewing the evidence in light of the elements of the crimes
as charged to the jury (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).




Entered:   April 27, 2012                       Frances E. Cafarell
                                                Clerk of the Court
