PEOPLE v. CLEVELAND (2000)

Defendant appeals from a judgment convicting him of two counts each of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ) and criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ).   The conviction arose out of defendant's sale of cocaine to a police informant.   There is no merit to defendant's contentions that the People failed to corroborate the informant's testimony, that the tape recording of the transactions between defendant and the informant was improperly admitted in evidence, and that the People failed to establish a sufficient foundation for admission of the cocaine in evidence.

 Where, as here, an informant acts as an agent of police without the intent to commit a crime, he is not an accomplice whose testimony must be corroborated (see, People v. Cona, 49 N.Y.2d 26, 34, 424 N.Y.S.2d 146, 399 N.E.2d 1167;  People v. Adams, 185 A.D.2d 680, 587 N.Y.S.2d 60, lv. denied 80 N.Y.2d 926, 589 N.Y.S.2d 854, 603 N.E.2d 959;  People v. Robinson, 139 A.D.2d 925, 528 N.Y.S.2d 741, lv. denied 72 N.Y.2d 865, 532 N.Y.S.2d 515, 528 N.E.2d 906).

 Whether a tape recording is sufficiently audible to warrant its admission in evidence is a matter for the exercise of the trial court's discretion (see, People v. Lubow, 29 N.Y.2d 58, 68, 323 N.Y.S.2d 829, 272 N.E.2d 331;  People v. Gandy, 152 A.D.2d 909, 543 N.Y.S.2d 817, lv. denied 74 N.Y.2d 896, 548 N.Y.S.2d 429, 547 N.E.2d 956).   A tape recording must be excluded from evidence only if it is so inaudible and indistinct that the jury would have to speculate concerning its contents (see, Lauro v. Bradley, 265 A.D.2d 875, 696 N.Y.S.2d 336;  People v. Scarbrough, 254 A.D.2d 824, 678 N.Y.S.2d 764, lv. denied 92 N.Y.2d 1038, 684 N.Y.S.2d 503, 707 N.E.2d 458).   Although portions of the subject tape recording were inaudible, County Court did not err in admitting it in evidence (see, People v. Rivera, 257 A.D.2d 172, 178, 691 N.Y.S.2d 4, affd. 94 N.Y.2d 908, 707 N.Y.S.2d 620, 729 N.E.2d 339;  People v. Martino, 244 A.D.2d 875, 665 N.Y.S.2d 768, lv. denied 92 N.Y.2d 1035, 684 N.Y.S.2d 500, 707 N.E.2d 455, 93 N.Y.2d 855, 688 N.Y.S.2d 502, 710 N.E.2d 1101).

 Various witnesses, including the officer who sent the drugs to the lab and received them back, as well as the chemist who tested the drugs at the lab, accounted for the identity and unchanged condition of the drugs based upon their appearance and the case number and other unique markings placed on the evidence bag.   Such testimony established an adequate foundation for admission of the drugs in evidence (see, People v. Julian, 41 N.Y.2d 340, 342-343, 392 N.Y.S.2d 610, 360 N.E.2d 1310;  People v. Parker, 217 A.D.2d 946, 629 N.Y.S.2d 592, lv. denied 87 N.Y.2d 849, 638 N.Y.S.2d 608, 661 N.E.2d 1390;  People v. Casado, 212 A.D.2d 1028, 1029, 623 N.Y.S.2d 449, lv. denied 85 N.Y.2d 970, 629 N.Y.S.2d 730, 653 N.E.2d 626).   Any deficiencies in the chain of custody went to the weight, not the admissibility, of the evidence (see, People v. Hooks, 258 A.D.2d 954, 685 N.Y.S.2d 563, lv. denied 93 N.Y.2d 972, 695 N.Y.S.2d 58, 716 N.E.2d 1103;  People v. Casado, supra, at 1029, 623 N.Y.S.2d 449).

Judgment unanimously affirmed.

MEMORANDUM: