PEOPLE v. BELLAMY (2006)

Appeal from a judgment of the County Court of Broome County (Mathews, J.), rendered June 6, 2005, convicting defendant following a nonjury trial of the crimes of tampering with physical evidence and perjury in the first degree.

As part of an August 2004 narcotics investigation, police executed a search warrant at 47 Griswold Street in the City of Binghamton, Broome County.   Upon entering the residence, police investigator James Hawley observed defendant run from a nearby bathroom and heard a toilet flushing therein.   Hawley entered the bathroom, retrieved a plastic bag containing crack cocaine from the toilet and took defendant into custody.

Although defendant testified before a grand jury that he was not attempting to flush cocaine down the toilet when the police entered the residence, he was indicted and charged with various offenses, including tampering with physical evidence and perjury in the first degree.   Defendant waived his right to a jury trial and was, thereafter, convicted of tampering with physical evidence and perjury in the first degree.   He was later sentenced, as a second felony offender, to consecutive terms aggregating at 3 1/212 to 7 years in prison.

 On this appeal, defendant first contends that County Court erred in admitting into evidence the bag of cocaine retrieved by Hawley because an adequate chain of custody was not established.   Hawley testified that he personally field tested the substance he retrieved from the toilet and it tested positive for cocaine.   He indicated that he placed the substance in a secure evidence locker at the Binghamton police station.   The property custodian for the Binghamton police testified that he subsequently transported the sealed substance from the evidence locker to the State Police laboratory and later retrieved it from the State Police.   Furthermore, an analyst with the State Police set forth the extensive laboratory procedures followed in the instant case and a certified copy of the State Police receipt record was admitted into evidence.   Even assuming that the aforementioned testimony does not establish a complete chain of custody, we conclude that the People's evidence provided “ ‘reasonable assurances of the identity and unchanged condition’ of the evidence” (People v. Julian, 41 N.Y.2d 340, 343, 392 N.Y.S.2d 610, 360 N.E.2d 1310 [1977], quoting Amaro v. City of New York, 40 N.Y.2d 30, 35, 386 N.Y.S.2d 19, 351 N.E.2d 665 [1976];  accord People v. Beverly, 5 A.D.3d 862, 864, 772 N.Y.S.2d 763 [2004], lvs. denied 2 N.Y.3d 796, 804, 781 N.Y.S.2d 295, 304, 814 N.E.2d 467, 476 [2004];  People v. Haggray, 173 A.D.2d 962, 964, 569 N.Y.S.2d 472 [1991], lv. denied 78 N.Y.2d 966, 574 N.Y.S.2d 946, 580 N.E.2d 418 [1991];  see People v. Harris, 29 A.D.3d 1027, 1028, 813 N.Y.S.2d 822 [2006] ).   Thus, inasmuch as deficiencies in the chain of custody merely relate to the weight to be accorded the evidence by the trier of fact (see People v. Harris, supra at 1028, 813 N.Y.S.2d 822;  People v. Howard, 305 A.D.2d 869, 870, 761 N.Y.S.2d 115 [2003], lv. denied 100 N.Y.2d 583, 764 N.Y.S.2d 393, 796 N.E.2d 485 [2003] ), County Court did not err in admitting the evidence.

 Next, defendant claims that reversal is required because he was not invited to participate in the first sidebar conference during his trial.  “While there can be no doubt that a defendant has a statutory right to be personally present at all material stages of a trial, including sidebar conferences” (People v. Williams, 11 A.D.3d 810, 812, 784 N.Y.S.2d 185 [2004], lv. denied 4 N.Y.3d 769, 792 N.Y.S.2d 13, 825 N.E.2d 145 [2005] [citation omitted];  see CPL 260.20), “[a] key factor in determining whether a defendant has a right to be present during a particular proceeding is ‘whether the proceeding involved factual matters about which defendant might have peculiar knowledge that would be useful in advancing the defendant's or countering the People's position’ ” (People v. Spotford, 85 N.Y.2d 593, 596, 627 N.Y.S.2d 295, 650 N.E.2d 1296 [1995], quoting People v. Dokes, 79 N.Y.2d 656, 660, 584 N.Y.S.2d 761, 595 N.E.2d 836 [1992] ).

In the instant case, the sidebar at issue concerned the interpretation of a stipulation previously entered into at trial.   Thus, the sidebar conference concerned a question of law and, consequently, it does not appear likely that defendant would have made a meaningful contribution had he been present (see People v. Fabricio, 3 N.Y.3d 402, 406, 787 N.Y.S.2d 219, 820 N.E.2d 863 [2004];  compare People v. Douglas, 29 A.D.3d 47, 52-53, 809 N.Y.S.2d 36 [2006], lv. denied 6 N.Y.3d 847, 816 N.Y.S.2d 753, 849 N.E.2d 976 [2006] ).   Moreover, we note that County Court reserved decision at that time and, upon realizing that defendant had not been present at the bench, explained what had transpired to defendant and indicated that he had a right to be present at all future sidebar conferences.   Accordingly, under all these circumstances, we do not find reversible error (see People v. Lamont, 21 A.D.3d 1129, 1131, 800 N.Y.S.2d 480 [2005], lv. denied 6 N.Y.3d 835, 814 N.Y.S.2d 83, 847 N.E.2d 380 [2006] ).

 Nor are we persuaded that County Court erred in sentencing defendant to consecutive terms of imprisonment.   Pursuant to Penal Law § 70.25(2), concurrent sentences must be imposed when “the actus reus elements in both of the committed offenses, as defined, are the same, or if the actus reus for one offense is, by definition, a material element of the other” (People v. Bryant, 92 N.Y.2d 216, 231, 677 N.Y.S.2d 286, 699 N.E.2d 910 [1998];  see e.g. People v. Larew, 11 A.D.3d 727, 728-729, 783 N.Y.S.2d 132 [2004];  see generally People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212 [1996] ).   Here, defendant was convicted of “suppressing” physical evidence via an act of concealment, alteration or destruction (see Penal Law § 215.40[2] ) and of subsequently making a false sworn statement concerning his commission of same (see Penal Law § 210.15).   Clearly, these offenses require the performance of entirely separate acts (compare People v. Maloney, 233 A.D.2d 681, 683, 650 N.Y.S.2d 342 [1996] ) and the mere fact that the charged offenses involve the same subject matter is, therefore, no bar to the imposition of consecutive sentences (see People v. Morrison, 290 A.D.2d 808, 809-810, 736 N.Y.S.2d 204 [2002], lv. denied 98 N.Y.2d 653, 745 N.Y.S.2d 512, 772 N.E.2d 615 [2002] ).

ORDERED that the judgment is affirmed.

CARDONA, P.J.

MERCURE, SPAIN, CARPINELLO and MUGGLIN, JJ., concur.