PEOPLE v. KISENIK (2001)

Appeal from a judgment of the County Court of Greene County (Lalor, J.), rendered January 11, 2000, 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).

In June 1999, defendant was indicted on two counts each of criminal possession and criminal sale of a controlled substance in the third degree arising from two separate sales of crack cocaine to an undercover police officer in the Town of Windham, Greene County.   Following arraignment, but prior to trial, defendant had numerous telephonic communications with George Tortorelis, Chief of the Town of Windham Police Department, about which Tortorelis testified at trial.   The jury convicted defendant of all charges and she was subsequently sentenced to concurrent terms of imprisonment of 6 to 20 years on each count.

 On appeal, defendant asserts that her statements to Tortorelis were elicited in violation of her right to counsel and right against self-incrimination.   We disagree.   Even if a defendant is represented by counsel, his or her comments are admissible at trial if they “were spontaneous statements not initiated by police conduct nor the result of police questioning or an interrogation environment” (People v. Bolarinwa, 258 A.D.2d 827, 829, 687 N.Y.S.2d 442, lv. denied 93 N.Y.2d 1014, 697 N.Y.S.2d 573, 719 N.E.2d 934;  see, People v. Harris, 57 N.Y.2d 335, 342, 456 N.Y.S.2d 694, 442 N.E.2d 1205, cert. denied 460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 803;  People v. Lynes, 49 N.Y.2d 286, 293-295, 425 N.Y.S.2d 295, 401 N.E.2d 405).   According to Tortorelis' testimony, defendant telephoned him on several occasions during the two-week period preceding her trial.   She explained that she had only been involved with crack cocaine for about five months and offered to provide him with information in exchange for leniency.

Under these circumstances, we find that defendant was not deprived of her constitutional rights as she voluntarily conversed with Tortorelis during these telephone calls which were initiated by her while not in police custody (see, People v. Garland, 177 A.D.2d 410, 576 N.Y.S.2d 848, lv. denied 79 N.Y.2d 1000, 584 N.Y.S.2d 455, 594 N.E.2d 949;  People v. Jones, 140 A.D.2d 372, 373, 527 N.Y.S.2d 857;  see also, People v. Bolarinwa, supra, at 829, 687 N.Y.S.2d 442;  People v. Reyes, 190 A.D.2d 693, 694, 593 N.Y.S.2d 278, lv. denied 81 N.Y.2d 975, 598 N.Y.S.2d 777, 615 N.E.2d 234;  People v.. Delgrippo, 172 A.D.2d 685, 568 N.Y.S.2d 641, lv. denied 78 N.Y.2d 965, 574 N.Y.S.2d 944, 580 N.E.2d 416).   Although defendant offered a differing account of these conversations, her conflicting testimony presented a credibility issue which the jury resolved in the People's favor (see, People v. Amadeo, 268 A.D.2d 672, 673, 701 N.Y.S.2d 471, lv. denied 95 N.Y.2d 832, 713 N.Y.S.2d 138, 735 N.E.2d 418;  People v. Burton, 191 A.D.2d 307, 308, 595 N.Y.S.2d 41, lv. denied 81 N.Y.2d 1011, 600 N.Y.S.2d 199, 616 N.E.2d 856).

 Nor do we find error in the testing of only a portion of the substance sold to the undercover police officer.   With the police chemist testifying that a single bag from each of the two transactions tested positive for cocaine, the People's burden was satisfied;  they were not required to prove the quantity of cocaine to sustain the convictions of the crimes charged (see, People v. Vaughns, 272 A.D.2d 915, 915-916, 708 N.Y.S.2d 534, lv. denied 95 N.Y.2d 872, 715 N.Y.S.2d 227, 738 N.E.2d 375;  see also, Penal Law § 220.16[1];  § 220.39[1] ).

 Finally, we are not persuaded that the sentence imposed was harsh and excessive since it falls within permissible statutory limits and is less than the maximum term authorized by law (see, Penal Law § 70.00[2][b];  [3] [b] ).   Lacking countervailing circumstances warranting a reduction in the interest of justice when defendant's prior criminal record is considered (see, People v. Carter, 267 A.D.2d 594, 700 N.Y.S.2d 407, lv. denied 94 N.Y.2d 917, 708 N.Y.S.2d 356, 729 N.E.2d 1155;  People v. Parker, 257 A.D.2d 693, 695, 684 N.Y.S.2d 300, lvs. denied 93 N.Y.2d 1015, 697 N.Y.S.2d 574, 719 N.E.2d 935, 93 N.Y.2d 1024, 697 N.Y.S.2d 583, 719 N.E.2d 944;  People v. Cruz, 244 A.D.2d 803, 804-805, 666 N.Y.S.2d 274), we decline further review.

ORDERED that the judgment is affirmed.

PETERS, J.

MERCURE, J.P., CREW III, MUGGLIN and LAHTINEN, JJ., concur.