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

406
KA 12-00376
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DOUGLAS A. WEAVER, DEFENDANT-APPELLANT.


DOUGLAS A. WEAVER, DEFENDANT-APPELLANT PRO SE.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered April 12, 2012. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a controlled
substance in the fifth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of criminal possession of a controlled substance
in the fifth degree (Penal Law § 220.06 [1]). Defendant’s contention
that he was deprived of a fair trial based on prosecutorial misconduct
on summation is not preserved for our review (see CPL 470.05 [2]) and,
in any event, is without merit (see People v Ward, 107 AD3d 1605,
1606, lv denied 21 NY3d 1078). Although the prosecutor improperly
vouched for the credibility of the confidential police informant once
during his summation, such conduct was not so egregious as to deny
defendant a fair trial (see People v Lyon, 77 AD3d 1338, 1339, lv
denied 15 NY3d 954). Furthermore, the prosecutor’s comment that the
evidence was “unrefuted” does not constitute a comment on defendant’s
failure to testify (see People v Tascarella, 227 AD2d 888, 888, lv
denied 89 NY2d 867; People v Staples, 212 AD2d 1052, 1052-1053). “The
remaining instances of alleged prosecutorial misconduct on summation
were either a fair response to defense counsel’s summation or fair
comment on the evidence” (Lyon, 77 AD3d at 1339 [internal quotation
marks omitted]).

     Defendant contends that the prosecutor also engaged in misconduct
by failing to comply with disclosure requirements. Specifically,
defendant contends that the prosecutor provided him with an “extremely
inaccurate” transcript of tape-recorded conversations between himself,
the accomplice, and the informant, who was carrying the tape recorder
provided to him by the police in his pocket during the controlled buy.
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                                                         KA 12-00376

That contention is likewise unpreserved for our review (see CPL 470.05
[2]) and, in any event, is without merit. Although the transcript
contained several errors, defendant was not prejudiced thereby
inasmuch as he was also provided with a copy of the tape recording,
and the transcript ultimately was deemed inadmissible at trial (see
generally People v Bradley, 48 AD3d 1145, 1146, lv denied 10 NY3d
860). Contrary to defendant’s additional contention, the prosecutor
did not engage in misconduct by permitting the informant to review the
transcript and tape recording prior to trial (see generally People v
Neff, 287 AD2d 809, 810).

     We reject defendant’s contention that County Court erred in
admitting the tape recording in evidence. “Although portions of the
recording[] 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
Jackson, 94 AD3d 1559, 1561, lv denied 19 NY3d 1026). Defendant’s
related contention that a proper foundation was not laid for the
introduction of the tape recording in evidence, or for the
introduction of a surveillance video in evidence depicting the events
giving rise to the controlled buy, is conclusory and unsupported by
the record. Finally, because the tape recording was properly admitted
in evidence, we reject defendant’s contention that the court
interfered with his right to testify when it ruled that such evidence
could be used by the prosecutor in cross-examining him (see generally
People v Cleveland, 273 AD2d 787, 788, lv denied 95 NY2d 864). We
have reviewed defendant’s additional contentions regarding the court’s
rulings on other motions, and we conclude that they are lacking in
merit.

     Defendant failed to preserve for our review his further
contention that the evidence is legally insufficient to support the
conviction on the grounds that “the testimony of an alleged accomplice
was both uncorroborated and incredible as a matter of law,” inasmuch
as he “failed to move for a trial order of dismissal on either of
those grounds” (People v Holloway, 97 AD3d 1099, 1099, lv denied 19
NY3d 1026). In any event, there was sufficient independent evidence
tending to connect defendant to the crime (see People v Moses, 63 NY2d
299, 306; People v Kaminski, 90 AD3d 1692, 1692, lv denied 20 NY3d
1100; see also CPL 60.22 [1]), and the accomplice’s testimony was not
incredible as a matter of law (see generally People v Thibodeau, 267
AD2d 952, 953, lv denied 95 NY2d 805). Defendant’s contention that
there was no evidence indicating that he ever possessed the drugs is
belied by the record.

     With respect to defendant’s challenge to the weight of the
evidence, we note that “[t]he jury had the opportunity to assess the
testimony and credibility of the accomplice, who received favorable
treatment in exchange for [her] testimony and who admitted that [she
had] lied” about defendant’s participation in the crime to other
witnesses (People v Smith, 32 AD3d 1291, 1292, lv denied 8 NY3d 849).
Viewing the evidence in light of the elements of the crime 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 People
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                                                         KA 12-00376

v Bleakley, 69 NY2d 490, 495).

     We further conclude that, contrary to defendant’s contention, he
was not denied effective assistance of counsel. Defendant’s
assertions that defense counsel did not adequately investigate and
prepare for trial, failed to introduce exculpatory evidence, and
failed to communicate with him are largely “based on matters outside
the record on appeal and therefore must be raised by way of a motion
pursuant to CPL 440.10” (People v Roman, 107 AD3d 1441, 1443, lv
denied 21 NY3d 1045). To the extent that those assertions are
reviewable on this appeal, we conclude that they lack merit (see
generally People v Baldi, 54 NY2d 137, 147).

      We likewise reject defendant’s challenge to defense counsel’s
representation on the basis of defense counsel’s failures to object to
admission of the tape recording in evidence, to object to
prosecutorial misconduct, to make additional motions, and to object to
an alleged violation of the court’s Sandoval ruling. None of those
failures requires reversal. “A defendant is not denied effective
assistance of trial counsel merely because counsel does not make a
motion or argument that has little or no chance of success” (People v
Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702). Lastly,
defendant’s contention that defense counsel failed to adequately
cross-examine the People’s witnesses is contradicted by the record.
Viewing the evidence, the law, and the circumstances of this case, in
totality and as of the time of the representation, we conclude that
defendant received meaningful representation (see Baldi, 54 NY2d at
147).




Entered:   June 13, 2014                        Frances E. Cafarell
                                                Clerk of the Court
