PEOPLE v. LUNA (2019)

The verdict was supported by legally sufficient evidence, and was not against the weight of the evidence (People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]).  There is no basis for disturbing the jury's credibility determinations.  Defendant's knowing and intentional participation in the drug transaction could be reasonably inferred from his conduct during the transaction, including his mention of “92” to the codefendant, corresponding to the 92 grams of heroin being offered for sale.

Defendant did not preserve any of his arguments regarding the court's intentional inclusion of stricken testimony in a jury readback, including his argument that defense counsel's summation was made in reliance on the original ruling that struck the testimony, and we decline to review them in the interest of justice.  As an alternative holding, we adhere to our determination on the codefendant's appeal (People v. Cuenea, 130 A.D.3d 412, 12 N.Y.S.3d 97 [1st Dept. 2015], lv denied 27 N.Y.3d 995, 38 N.Y.S.3d 105, 59 N.E.3d 1217 [2016]) that the court providently exercised its discretion in revisiting its prior ruling and permitting the jury to hear the stricken testimony.  While counsel did rely on the original ruling in formulating his summation (see e.g. People v. Crumpler, 242 A.D.2d 956, 958, 662 N.Y.S.2d 341 [4th Dept. 1997], lv denied 91 N.Y.2d 871, 668 N.Y.S.2d 569, 691 N.E.2d 641 [1997]), we find that any error in this regard was harmless.  There is no reasonable possibility that a different summation would have resulted in a more favorable verdict.

The court providently exercised its discretion in admitting an audio recording of the transaction.  The court listened to the tape and made, at least, an implied finding that the recording was sufficiently audible to be played for the jury.  Furthermore, the fact that a translator was able to prepare a transcript of the recording indicates that it was sufficiently audible and distinct.  Moreover, the fact that the transcript was not prepared by the testifying officer, but an independent translator, eliminated the danger “that the participant's memory of the events, rather than the actual sounds on the tape, becomes the source of the words on the transcript” (People v. Mincey, 64 A.D.2d 615, 615, 406 N.Y.S.2d 526 [2d Dept. 1978]).  In light of the audibility of the tape and the presence of an independent transcript, there was no danger that the jury was speculating or was relying solely on the officer's interpretation of the recording in returning its verdict.  In any event, any error in admitting the recording was harmless.