PEOPLE v. VAZQUEZ

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Hilario VAZQUEZ, Defendant-Appellant.

Decided: April 28, 2006

PRESENT:  SCUDDER, J.P., KEHOE, MARTOCHE, GREEN, AND HAYES, JJ. Christine M. Cook, Lyons, for Defendant-Appellant. R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him following a jury trial of criminal sale of a controlled substance in the first degree (Penal Law § 220.43[1] ) and criminal possession of a controlled substance in the second degree (§ 220.18[1] ).   County Court properly denied defendant's request to instruct the jury that a certain prosecution witness was an accomplice as a matter of law and that his testimony required corroboration (see People v. Hines, 24 A.D.3d 964, 806 N.Y.S.2d 737).   Contrary to defendant's further contention, the court properly permitted the People to question the investigating officer on redirect examination concerning his conversations with narcotics investigators from the Rochester Police Department with respect to defendant.   Defense counsel opened the door to that questioning during his cross-examination of the investigating officer (see People v. Mateo, 2 N.Y.3d 383, 425, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  People v. Melendez, 55 N.Y.2d 445, 451, 449 N.Y.S.2d 946, 434 N.E.2d 1324).   Defense counsel also opened the door on cross-examination to the questioning of another prosecution witness on redirect examination with respect to the charges and sentences of other participants in the crime (see Mateo, 2 N.Y.3d at 425, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  Melendez, 55 N.Y.2d at 451, 449 N.Y.S.2d 946, 434 N.E.2d 1324).   The court erred, however, in permitting the prosecutor to question the investigating officer on direct examination with respect to the guilty pleas entered by codefendant and other participants in the crime (see People v. Wright, 41 N.Y.2d 172, 176, 391 N.Y.S.2d 101, 359 N.E.2d 696;  People v. Colascione, 22 N.Y.2d 65, 73, 291 N.Y.S.2d 289, 238 N.E.2d 699;  People v. Martinez, 164 A.D.2d 826, 827, 559 N.Y.S.2d 723, lv. denied 76 N.Y.2d 1022, 565 N.Y.S.2d 773, 566 N.E.2d 1178).   Nevertheless, we conclude under the circumstances of this case that the error is harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

We reject the further contention of defendant that the court erred in permitting the investigating officer to testify concerning the hearsay statements of others involved in the investigation.   That testimony was introduced for the “nonhearsay purpose of completing the narrative of events and explaining police actions” (People v. Guerrero, 22 A.D.3d 266, 266, 801 N.Y.S.2d 739, lv. denied 5 N.Y.3d 882, 808 N.Y.S.2d 585, 842 N.E.2d 483), and any “inferential bolstering” that may have occurred is harmless error (People v. Anderson, 260 A.D.2d 387, 388, 689 N.Y.S.2d 153, lv. denied 93 N.Y.2d 922, 693 N.Y.S.2d 505, 715 N.E.2d 508;  93 N.Y.2d 965, 695 N.Y.S.2d 51, 716 N.E.2d 1096  see People v. Parris, 247 A.D.2d 221, 222, 668 N.Y.S.2d 358, lv. denied 91 N.Y.2d 944, 671 N.Y.S.2d 723, 694 N.E.2d 892).   We reject the further contention of defendant that he was denied a fair trial by prosecutorial misconduct during summation.   The prosecutor's summation constituted a fair response to defense counsel's summation (see People v. Melendez, 11 A.D.3d 983, 984, 782 N.Y.S.2d 893, lv. denied 4 N.Y.3d 888, 798 N.Y.S.2d 734, 831 N.E.2d 979).   The court satisfied the requirements of CPL 310.30 in responding to the jury's request for further instructions (see generally People v. O'Rama, 78 N.Y.2d 270, 277-278, 574 N.Y.S.2d 159, 579 N.E.2d 189), and defendant failed to preserve for our review any contention regarding the alleged inadequacy of the court's procedure in responding to the jury's request (see People v. Starling, 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 650 N.E.2d 387).   We reject the contention of defendant that, because the People did not provide a CPL 710.30 notice with respect to a conversation between defendant, codefendant and a prosecution witness, the court erred in allowing the People to introduce in evidence the audiotape of that conversation (see People v. Evans, 17 A.D.3d 861, 862, 793 N.Y.S.2d 278, lv. denied 5 N.Y.3d 828, 804 N.Y.S.2d 42, 837 N.E.2d 741).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: