                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: August 6, 2015                     105618
________________________________

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

LEFONZA CARTER,
                    Appellant.
________________________________


Calendar Date:    May 29, 2015

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

                              __________


      John P.M. Wappett, Public Defender, Lake George (Glenn B.
Liebert of counsel), for appellant.

      Kathleen B. Hogan, District Attorney, Lake George (Emilee
B. Davenport of counsel), for respondent.

                              __________


Egan Jr., J.

      Appeal from a judgment of the County Court of Warren County
(Hall Jr., J.), rendered November 28, 2012, upon a verdict
convicting defendant of the crimes of criminal possession of a
controlled substance in the third degree (two counts) and
criminal sale of a controlled substance in the third degree (two
counts).

      Defendant was indicted and charged with two counts each of
criminal sale of a controlled substance in the third degree and
criminal possession of a controlled substance in the third
degree. The charges stemmed from defendant's sale of crack
cocaine on April 9, 2012 and April 11, 2012 to a person known to
him who was acting as a confidential informant (hereinafter CI)
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for the Warren County Sheriff's Department. On each occasion,
the CI placed a call to defendant in advance, which was recorded,
and the CI thereafter went to a hotel room occupied by defendant
in the Village of Lake George, Warren County, where defendant
provided the CI with crack cocaine in exchange for $100. During
both transactions, the CI wore a transmitter, which allowed law
enforcement officials to listen to the transactions, and also was
equipped with a bluetooth-like device, which captured an audio
and video recording of the sales. Following a jury trial,
defendant was convicted as charged and sentenced to an aggregate
prison term of 12 years followed by a period of postrelease
supervision. This appeal by defendant ensued.

      We affirm. Defendant initially contends that the People
violated their obligation under Brady by failing to timely
disclose impeachment information regarding the CI — specifically,
details concerning her unrelated criminal activity before and
after the subject sales and the terms of her cooperation
agreement. Brady requires the People "to timely disclose all
exculpatory and material evidence, including evidence that could
be used to challenge the credibility of a crucial prosecution
witness or that would reflect a cooperation agreement between a
witness and the prosecution" (People v Williams, 50 AD3d 1177,
1179 [2008] [citations omitted]; see People v Johnson, 107 AD3d
1161, 1164-1165 [2013], lv denied 21 NY3d 1075 [2013]). In order
to establish a Brady violation, a defendant must demonstrate that
"(1) the evidence is favorable to the defendant because it is
either exculpatory or impeaching in nature; (2) the evidence was
suppressed by the prosecution; and (3) prejudice arose because
the suppressed evidence was material" (People v Fuentes, 12 NY3d
259, 263 [2009]; accord People v Garrett, 23 NY3d 878, 885
[2014]; see People v Serrano, 99 AD3d 1105, 1106 [2012], lv
denied 20 NY3d 1014 [2013]). Untimely or delayed disclosure will
not prejudice a defendant or deprive him or her of a fair trial
where the defense is provided with "a meaningful opportunity to
use the allegedly exculpatory material to cross-examine the
People's witnesses or as evidence during his [or her] case"
(People v Cortijo, 70 NY2d 868, 870 [1987]; see People v Serrano,
99 AD3d at 1107; People v Williams, 50 AD3d at 1179).

     Here, in response to defendant's general omnibus request
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for Brady material, the People indicated that a CI had been
utilized and compensated for her services; the CI's identity was
disclosed in connection with the People's Molinuex application in
September 2012. On Friday, October 12, 2012, with the trial
scheduled to begin the following Monday, the People made numerous
additional disclosures relative to the CI, including the fact
that she had been involved in the sale of hydrocodone in
Washington County in December 2011, that she thereafter agreed to
cooperate with Warren County law enforcement officials in
exchange for promises that her assistance would be made known to
prosecutors and that she subsequently was promised that, if she
testified truthfully in this matter, she would not be criminally
charged for the 2011 prescription drug sale. On the morning of
the first day of trial, the People additionally disclosed, among
other things, the CI's history of drug use and prior
sales/purchases of drugs, as well as the fact that the CI, who
then was incarcerated due to her failure to pay certain criminal
fines, received an extra piece of crack cocaine from defendant
during the April 9, 2012 sale, which she secreted and did not
turn over to the police. The defense also was informed that the
CI was involved in an unauthorized sale of crack cocaine in her
apartment in May 2012, during which another informant made a
controlled buy, and that the CI later testified before the grand
jury in that matter. At the conclusion of the first day of
trial, the People turned over the video recording of the May 2012
drug sale and the CI's related grand jury testimony.

      Although County Court denied defendant's motion to dismiss
the indictment in the interest of justice as a sanction for the
delayed disclosure, the court ordered the People to make
available to the defense the informant-buyer involved in the May
2012 sale and, further, to delay calling the CI to testify in
order to allow the defense time to prepare. Consistent with that
directive, the CI was not called by the People to testify until
Friday, October 19, 2012, and her direct testimony extended into
the following Monday — a full week after the last disclosure. At
that point, the CI was subject to in-depth cross-examination,
during the course of which she was meticulously impeached on all
of the foregoing matters and admitted that she had lied to the
grand jury regarding her activities during the May 2012 sale.
Finally, the full terms of and circumstances surrounding the
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underlying cooperation agreement were elicited in detail,
allowing the jury to assess the CI's credibility (compare People
v Steadman, 82 NY2d 1, 7-8 [1993]; People v Novoa, 70 NY2d 490,
496-498 [1987]).1

      As the record establishes that the defense had a meaningful
opportunity to review and effectively use the impeachment
materials, we are satisfied that no prejudice resulted from the
delayed disclosure (see People v Cortijo, 70 NY2d at 870; People
v Serrano, 99 AD3d at 1107; People v Burroughs, 64 AD3d 894, 898
[2009], lv denied 13 NY3d 794 [2009]). Further, under these
circumstances, we find that there is no "reasonable probability"
that, had the impeachment material been timely disclosed, the
verdict would have been different (People v Garrett, 23 NY3d at
891; accord People v Fuentes, 12 NY3d at 263). Accordingly,
reversal upon this ground is not warranted.

      We reach a similar conclusion regarding the People's
failure to preserve the original digital recordings of the set-up
calls and drug transactions. "[T]he prosecution is under a duty
to diligently preserve all materials which may be subject to
disclosure" until a request for disclosure is made (People v
Close, 103 AD2d 970, 971 [1984]; see People v Kelly, 62 NY2d 516,
520 [1984]; People v Gomez-Kadawid, 66 AD3d 1124, 1125 [2009]),
and there is no dispute that these recordings were discoverable
(see CPL 240.20 [1] [g]; People v Carpenter, 88 AD3d 1160, 1161
[2011]). In this instance, however, the testimony of members of
the Warren County Sheriff's Department established that all of
the audio and visual digital information recorded on the device
worn by the CI during both sales, as well as the audio of the
set-up calls, was immediately transferred to a computer — without


    1
        Even assuming that the CI's telephone calls from the
local jail to the Assistant District Attorney, which were
recorded by jail staff, were under the control and possession of
the People and subject to disclosure pursuant to Brady (cf.
People v Lewis, 125 AD3d 1109, 1111 [2015]), the audio recordings
were made available on October 17, 2012 (prior to the CI's
testimony), thereby affording defendant a meaningful opportunity
to use the recordings to impeach the CI during cross-examination.
                              -5-                105618

alteration or deletion — and then copied to computer discs, which
thereafter were provided to the defense. Only after the transfer
of the original and complete digital recordings to the computer
was the information removed from the recording device, so that
such device could be reused. Thus, contrary to defendant's
claims, the recorded digital information was never "destroyed"
but, rather, was downloaded and transferred from one device to
another, and the record reflects that he received an exact
replica of the digital recordings (see People v Burroughs, 64
AD3d at 896-897; compare People v Saddy, 84 AD2d 175, 178-179
[1981]). Moreover, even assuming that we were to find that the
procedures employed here violated the People's disclosure
obligations, there was neither a showing of bad faith by the
officers nor any demonstrable prejudice to defendant so as
warrant a sanction (see CPL 240.70 [1]; People v Carpenter, 88
AD3d at 1161; compare People v Saddy, 84 AD2d at 179-180).

      Likewise, we find that County Court properly admitted into
evidence the video recordings of the April 9, 2012 and April 12,
2012 controlled buys. "The decision to admit videotape evidence
rests within the sound discretion of the trial court and will not
be disturbed absent a lack of foundation for its introduction or
a demonstrated abuse of the court's discretion" (People v Boyd,
97 AD3d 898, 899 [2012], lv denied 20 NY3d 1009 [2013] [citation
omitted]). Here, the videos of both sales were authenticated by
the CI, who directly participated in the buys, identified
defendant in court as the seller and, after viewing the videos,
confirmed that voices on the recordings were hers and that of
defendant and, further, that such recordings accurately and
fairly depicted the underlying events (see People v McGee, 49
NY2d 48, 59-60 [1979]; People v Junior, 119 AD3d 1228, 1231
[2014], lv denied 24 NY3d 1044 [2014]; People v Lee, 80 AD3d
1072, 1073-1074 [2011], lvs denied 16 NY3d 832, 833 [2011]).
Additionally, Jeff Gildersleeve, an investigator with the Warren
County Sheriff's Department who conducted surveillance of both
controlled drug buys from across the street, testified that he
observed the CI enter and exit the hotel, overheard the subject
sales via the transmitter, identified the voices he heard as
belonging to the CI and defendant and attested to the accuracy of
the events as portrayed on the relevant recordings. Kevin Clark,
also a member of the Warren County Sheriff's Department, oversaw
                              -6-                105618

the operation of the recording devices and their duplication and
attested to the accuracy of the audio and video recordings of the
controlled buys. In light of the foregoing, we are satisfied
that the People laid a proper foundation for the admission of the
recordings at issue.

      Defendant's challenge to the accuracy of the recording of
the April 9, 2012 sale — namely, that the recording ends before
the CI secreted the extra piece of crack cocaine that defendant
had given her — lacks merit, as both Gildersleeve and the CI
testified to her actions and attested to the accuracy of the
video. With regard to the recording of the April 11, 2012 sale,
although the audio and video components were not synchronized,
the testimony at trial established that the recording accurately
and completely depicted what had occurred (cf. People v Boyd, 97
AD3d at 899). Finally, we discern no error in the admission of
an edited video of the sales created by Jason Cooper, a member of
the State Police video forensic unit, who explained that he used
a software audio filter to improve the sound quality and
synchronize the recording of the April 11, 2012 sale. Although
Cooper acknowledged that he shortened the recording for
demonstrative purposes to include only the portion where the CI
was in the hotel room, he also verified that he had not altered
the content of the previously authenticated recordings. Thus, we
are satisfied that no error occurred in the admission of the
recordings.

      Nor do we find merit to defendant's claimed Molineux
violation. During the cross-examination of Gildersleeve
regarding the surveillance of these sales, defense counsel
questioned why plainclothes officers had not been deployed to
secure the hotel and check for drugs in advance of the controlled
buys. In response, Gildersleeve indicated that defendant knew
"some of our officers" from "other encounters . . . with him in
other hotels"; when pressed as to whether defendant knew "every
single person employed by the Warren County Sheriff['s]
Department," Gildersleeve reiterated that undercover officers in
his unit "had other encounters" with defendant. We find that
County Court properly denied defendant's motion to strike
Gildersleeve's answers, as they were responsive to the questions
posed by defense counsel (not the People), were not gratuitously
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volunteered and made no specific reference to prior drug sales.
In short, inasmuch as the testimony completed the narrative
supplied by Gildersleeve and provided context for his testimony,
we find that it was properly admitted (see People v Rivera, 124
AD3d 1070, 1073 [2015]; People v Malak, 117 AD3d 1170, 1175
[2014], lv denied 24 NY3d 1086 [2014]).

      We next turn to defendant's contention that County Court
erred in admitting into evidence the evidence bags containing the
cocaine turned over by the CI after each of the sales because the
cocaine was in an altered condition. In order to establish the
admissibility of real evidence, such as the actual crack cocaine
involved in a drug sale, the People are required to establish its
authenticity by showing "first, that the evidence is identical to
that involved in the crime[,] and, second, that it has not been
tampered with" (People v Julian, 41 NY2d 340, 342-343 [1977]; see
People v Danford, 88 AD3d 1064, 1066 [2011], lv denied 18 NY3d
882 [2012]). One acceptable method of authenticating fungible
items, such as bags containing white powder, is to establish a
chain of custody (see People v Julian, 41 NY2d at 343; People v
Danford, 88 AD3d at 1067; People v Gilmore, 72 AD3d 1191, 1192-
1193 [2010]).

      Here, the CI testified that, as soon as she exited the
hotel after each controlled buy, she turned the substance
purchased over to Clark; Clark, in turn, testified that he field
tested the relevant substances and placed them in sealed, signed
and dated evidence bags, which were stored in the evidence
locker. Additionally, the evidence custodian for the Warren
County Sheriff's Department testified to the procedures in place
for securing and handling evidence, indicated that such
procedures were followed in this case and described his
transportation of the evidence to and from the evidence locker
and the State Police crime laboratory. In addition, the People
presented the testimony of the State Police forensic scientist
who received, tested, weighed and secured the evidence, and she
testified that the evidence admitted at trial was in the same
condition as when she examined it. Based upon such testimony, we
find that the People established a sufficient chain of custody of
the crack cocaine sold by defendant, and any gaps in the chain of
custody "go to the weight of the evidence, not its admissibility"
                                 -8-                105618

(People v Hawkins, 11 NY3d 484, 494 [2008]; see People v Gilmore,
72 AD3d at 1193; People v Bellamy, 34 AD3d 937, 939 [2006], lv
denied 8 NY3d 843 [2007]).

      To the extent that defendant argues that the disparity in
the weights recorded for the cocaine – initially by the Warren
County Sheriff's Department and later by the State Police –
impaired the integrity of that evidence and established that it
had been altered, we disagree.2 The noted disparity was fully
explained by the testimony at trial, which established that the
Warren County Sheriff's Department scale was not calibrated;
hence, ascertaining an accurate weight of the submitted
substances was a matter left to the State Police laboratory to
determine. In this regard, a State Police forensic scientist
testified that the scales used in their laboratory were
calibrated and tested for accuracy. Thus, the disparity was a
matter relevant to the persuasiveness of the evidence, not its
admissibility (see People v Gilmore, 72 AD3d at 1193). As the
People provided "the necessary reasonable assurances of the
identity and unchanged condition of the drugs to authenticate
that evidence," County Court properly admitted the bags of
cocaine into evidence (People v Danford, 88 AD3d at 1067; see
People v Hawkins, 11 NY3d at 494; People v Chappelle, 126 AD3d
1127, 1128 [2015], lv denied ___ NY3d ___ [June 10, 2015]).
Defendant's remaining contentions, to the extent not specifically
addressed, have been examined and found to be lacking in merit.

         McCarthy, J.P., Devine and Clark, JJ., concur.




     2
        The weight of the cocaine was not an element of any of
the charged crimes (see Penal Law §§ 220.16 [1]; 220.39 [1]).
                        -9-                  105618

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
