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

1374
KA 08-02459
PRESENT: SCUDDER, P.J., CENTRA, CARNI, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANGEL CRUZ, ALSO KNOWN AS JOHN DOE,
DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (SHIRLEY A. GORMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (DENNIS A. RAMBAUD OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered September 25, 2008. The judgment convicted
defendant, upon a jury verdict, of conspiracy in the second degree,
attempted criminal possession of a controlled substance in the first
degree, attempted criminal possession of a controlled substance in the
third degree, criminal sale of a controlled substance in the second
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: In appeal No. 1, defendant appeals from a judgment
convicting him following a jury trial of, inter alia, conspiracy in
the second degree (Penal Law § 105.15), attempted criminal possession
of a controlled substance in the first degree (§§ 110.00, 220.21 [1]),
and criminal sale of a controlled substance in the second degree (§
220.41 [1]). In appeal No. 2, defendant appeals from a judgment
convicting him following the same jury trial of criminal possession of
a weapon in the second degree (§ 265.03 [3]) and criminal possession
of a weapon in the third degree (§ 265.02 [1]). Contrary to
defendant’s contention, County Court did not abuse its discretion in
granting the People’s motion to consolidate the indictments (see
People v Bankston, 63 AD3d 1616, 1616-1617, lv denied 14 NY3d 885; see
generally People v Lane, 56 NY2d 1, 8). The offenses were joinable
under CPL 200.20 (2) (a) or, alternatively, CPL 200.20 (2) (b)
 (see People v Burroughs, 191 AD2d 956, 956-957, lv denied 82 NY2d
715).

     We reject defendant’s contention that the court erred in denying
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                                                         KA 08-02459

his motion to suppress the evidence obtained from eavesdropping
warrants. The applications established that “normal investigative
procedures have been tried and have failed, or reasonably appear to be
unlikely to succeed if tried, or to be too dangerous to employ” (CPL
700.15 [4]; see People v Rabb, 16 NY3d 145, 152-153, cert denied ___
US ___, 132 S Ct 453; People v Hanks, 87 AD3d 1370, 1371, amended on
rearg 90 AD3d 1592, lv denied 18 NY3d 883). Contrary to defendant’s
further contention, reversal is not required based on lost trial
exhibits. The recorded telephone conversations obtained pursuant to
the eavesdropping warrants, which are now lost, were introduced in
evidence, and many of those recordings were in Spanish. English
transcripts were provided to the jury as an aid while the recordings
were played during the trial, but they were not admitted in evidence.
The transcripts were, however, marked as court exhibits and are part
of the record before us. Defendant does not contest that the
transcripts were accurate translations of the audiotaped recordings.
We therefore conclude that reversal is not required inasmuch as the
record includes the information contained in the lost recordings and
allows for effective appellate review (see People v Yavru-Sakuk, 98
NY2d 56, 59-60; People v Strollo, 191 NY 42, 67-68). In addition, the
lost bill of sale for the vehicle in which the police found a weapon
does not preclude effective appellate review inasmuch as defendant
raises no challenge to the sufficiency or weight of the evidence with
respect to the weapons counts in appeal No. 2.

     Defendant failed to preserve for our review his contention that
either the transcripts should have been admitted in evidence or the
court should have appointed an interpreter to translate the
conversations as they were played to the jury (see People v Martinez,
222 AD2d 702, 702, lv denied 87 NY2d 1022). Contrary to defendant’s
contention, this was not a mode of proceedings error (see People v
Rincon, 40 AD3d 538, 539, lv denied 9 NY3d 880; see e.g. People v
Morel, 246 AD2d 311, 311, lv denied 91 NY2d 1010; Martinez, 222 AD2d
at 702). In any event, the court acted within its discretion in
declining to admit the transcripts in evidence (see People v Mendez,
26 NY3d 1004, ___; People v Tapia, 114 AD2d 983, 984-985, lv denied 67
NY2d 951; see also People v Robinson, 158 AD2d 628, 628-629).

     Viewing the evidence in light of the elements of the crimes in
appeal No. 1 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 id. at 348-349; People v Bleakley, 69 NY2d 490,
495). Defendant contends that he received ineffective assistance of
counsel based on defense counsel’s failure to move to suppress the
eavesdropping evidence pursuant to CPL 700.70 and defense counsel’s
failure to object to an officer’s identification of defendant’s voice
on the ground that no notice was given pursuant to CPL 710.30.
Defendant failed to show that defense counsel did not have a strategic
reason for not making the motion pursuant to CPL 700.70 inasmuch as
the record shows no colorable basis for such a motion (see People v
Rivera, 71 NY2d 705, 708-709). The record before us indicates that
the People complied with CPL 700.70 by turning over a disc containing
the eavesdropping warrants and applications at the time defendant was
arraigned. In addition, there was no pretrial police-arranged voice
                                 -3-                          1374
                                                         KA 08-02459

identification made by the officer (see People v Jackson, 94 AD3d
1559, 1560, lv denied 19 NY3d 1026; People v Morenito, 281 AD2d 928,
928-929, lv denied 96 NY2d 904), and therefore any objection on the
ground of lack of notice pursuant to CPL 710.30 would have had little
or no chance of success (see People v Raszl, 108 AD3d 1049, 1050).

     Defendant initially pleaded guilty to a reduced count but, at
sentencing, the court granted defendant’s request to withdraw his
plea, whereupon the case proceeded to trial. On appeal, defendant
contends that the court should not have granted his application to
withdraw his plea without first, sua sponte, affording him the
opportunity to confer with defense counsel. That contention is not
preserved for our review (see People v Umali, 10 NY3d 417, 423, rearg
denied 11 NY3d 744, cert denied 556 US 1110) and, in any event, it is
without merit (see generally People v O’Conner, 21 AD3d 1287, 1288, lv
denied 6 NY3d 816).

     As the People correctly concede, the court erred in sentencing
defendant as a persistent violent felony offender on the conviction of
criminal possession of a weapon in the second degree in appeal No. 2
where, as here, defendant committed the second predicate violent
felony before being sentenced on the first predicate violent felony
(see People v Davis, 43 AD3d 448, 449, lv denied 9 NY3d 990,
reconsideration denied 10 NY3d 763; see generally People v Morse, 62
NY2d 205, 224-225, appeal dismissed 469 US 1186). We therefore modify
the judgment in appeal No. 2 by vacating the sentence imposed on count
one of the indictment, and we remit the matter to County Court for
resentencing on that count. We note, however, that the People are not
precluded at resentencing “from attempting to establish, on the basis
of a different conviction or convictions, that defendant is
nonetheless a persistent violent felony offender” (People v Colon, 45
AD3d 457, 458, lv denied 10 NY3d 809; see generally People v Johnson,
124 AD3d 1318, 1319, lv denied 25 NY3d 951).




Entered:   December 23, 2015                    Frances E. Cafarell
                                                Clerk of the Court
