                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: January 21, 2016                     106541
________________________________

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

TAMMY L. HOTALING,
                    Appellant.
________________________________


Calendar Date:   November 19, 2015

Before:   Lahtinen, J.P., McCarthy, Egan Jr., Lynch and
          Devine, JJ.

                               __________


     Abbie Goldbas, Utica, for appellant.

      John M. Muehl, District Attorney, Cooperstown (Michael F.
Getman of counsel), for respondent.

                               __________


Lynch, J.

      Appeal from a judgment of the County Court of Otsego County
(Burns, J.), rendered February 21, 2014, upon a verdict
convicting defendant of the crime of criminal sale of a
controlled substance in the third degree.

      Following her alleged sale of cocaine to a confidential
informant (hereinafter CI) during a controlled buy monitored by
several nearby law enforcement officers and captured by audio and
video recording devices placed in the CI's vehicle, defendant was
charged in a single-count indictment with criminal sale of a
controlled substance in the third degree. After a jury trial,
she was convicted as charged and sentenced, as a second felony
offender, to a prison term of seven years, plus two years of
                               -2-               106541

postrelease supervision.   Defendant appeals.

      We affirm. Defendant first maintains that the integrity of
the grand jury proceeding was compromised when, in response to a
question as to whether he provided his services "for nothing,"
the CI falsely responded, "Correct." While the presentation of
false testimony to the grand jury can impact the integrity of the
proceeding (see CPL 210.35 [5]; People v Pelchat, 62 NY2d 97, 106
[1984]), the questioning here centered on whether the CI was paid
for his services, to which the CI added that he had been paid in
the past, but not here. Notably, the People presented the
testimony of Michael Ten Eyck, an investigator in the Otsego
County Sheriff's Office, who clarified the CI's misstatement by
explaining that the CI had agreed to participate in exchange for
leniency relative to several traffic tickets. While the CI's
statement was incomplete and, thus, misleading, the details of
the cooperation agreement pertained only to the collateral issue
of the CI's credibility and not the core question for the grand
jury to decide as to whether a prima facie case existed (see
People v Hansen, 290 AD2d 47, 50-51 [2002], affd 99 NY2d 339
[2003]). In view of Ten Eyck's testimony, we perceive no undue
prejudice, and a dismissal of the indictment is not warranted
(see People v Charles-Pierre, 31 AD3d 659, 659 [2006]; People v
Hansen, 290 AD2d at 50-51).

      Defendant further alleges that the People committed Brady,
Rosario and Ventimiglia violations and the prosecutor made
improper comments during summations, effectively depriving her of
a fair trial. We are not persuaded. As for the alleged Brady
violations, defendant maintains that the People failed to
disclose the complete terms of the CI's cooperation agreement and
a text message purportedly sent by defendant to the CI initiating
the cocaine sale. While defendant failed to preserve this
argument by raising a timely objection at trial (see CPL 330.30
[1]; People v Ross, 43 AD3d 567, 569 [2007], lv denied 9 NY3d 964
[2007]), the argument is, in any event, without merit. The
People clearly have a duty to disclose the terms of any
cooperation agreement with a witness and, in fact, did so (see
People v Novoa, 70 NY2d 490, 496-497 [1987]). Contrary to
defendant's argument, the record shows that, in response to
defendant's demand to produce, the People disclosed that the CI
                              -3-                106541

"was working with the police in exchange for leniency on pending
charges." Moreover, this arrangement was detailed during the
cross-examination of the CI. As for the text message, the CI's
testimony revealed that he received the text message from
defendant and then notified the police of her offer to sell him
cocaine; therefore, he was not acting as an agent of law
enforcement at the time he received the message. It follows that
the People were under no obligation to secure, preserve or
disclose the text message (see CPL 240.20; People v Smith, 89
AD3d 1148, 1150 [2011], lv denied 19 NY3d 968 [2012]). Moreover,
the text message was clearly inculpatory. As such, were this
issue before us, we would perceive no Brady or Rosario violations
relative to the text message (see People v Smith, 89 AD3d at
1150; People v Burroughs, 64 AD3d 894, 898 [2009], lv denied 13
NY3d 794 [2009]). Next, we find no merit in defendant's
remaining Rosario argument that the People failed to disclose the
CI's criminal history. The People's contention that they
provided defendant with the CI's latest criminal history prior to
trial (see CPL 240.45 [1] [b]) is confirmed by the fact that
defense counsel cross-examined the CI as to his criminal history.

      Defendant's Ventimiglia challenge was also unpreserved
because she failed to object to Ten Eyck's testimony suggesting
that defendant had engaged in prior criminal activity with the
CI. In any event, were this issue properly before us we would
find it to be without merit. Although the prosecutor asked open-
ended questions that elicited Ten Eyck's response, the prosecutor
did not directly ask about defendant's prior acts (see People v
Robinson, 16 AD3d 768, 770 [2005], lv denied 4 NY3d 856 [2005]).
Moreover, after conferring with counsel, County Court issued a
prompt curative instruction to "disregard any testimony about any
prior dealings between the [CI] and [defendant]." As for the
prosecutor's comment during summation that "[t]he only way you
can find this defendant not guilty is if you somehow feel sorry
for her," we note that defendant did not object and, thus, her
argument is unpreserved (see People v Nadal, 131 AD3d 729, 731
[2015], lv denied 26 NY3d 1041 [2015]; People v Lamont, 21 AD3d
1129, 1131 [2005], lv denied 6 NY3d 835 [2006]). In any event,
this isolated comment did not rise to the level of prosecutorial
misconduct warranting a new trial.
                              -4-                  106541

      Finally, we are not persuaded by defendant's assertion that
she was deprived of the effective assistance of counsel. It is
noteworthy that County Court assigned two attorneys to represent
defendant at trial. While defendant takes issue with defense
counsel's failure to obtain more detail as to the cooperation
agreement with the CI, the terms of that agreement were explored
during cross-examination. Nor are we persuaded that counsel
failed to adequately object to Ten Eyck's testimony explaining
how the controlled buy was arranged with the CI, or that defense
counsel's efforts to impeach certain witnesses were inadequate.
The standard here is one of meaningful representation (see People
v Oathout, 21 NY3d 127, 128 [2013]), and we are satisfied that
meaningful representation was provided.

     Lahtinen, J.P., McCarthy, Egan Jr. and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
