PEOPLE v. GOMEZ

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

The PEOPLE of the State of New York, Respondent, v. Daniel GOMEZ, Defendant-Appellant.

Decided: November 16, 1999

ELLERIN, P.J., ROSENBERGER, NARDELLI, LERNER and ANDRIAS, JJ. Barbara Jane Hutter, for Respondent. Michael Taglieri, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered November 13, 1996, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously affirmed.

The court properly exercised its discretion in receiving certain evidence under the past recollection recorded exception to the hearsay rule, since the court properly found that the People “made a sufficient showing of the accuracy of the recording and its reliability” (People v. Taylor, 80 N.Y.2d 1, 9, 586 N.Y.S.2d 545, 598 N.E.2d 693).   The relevant witness testified that, based on his review of the voucher bearing his signature, the record was accurate and complete and was submitted in accordance with his practice of filling out such forms whenever he recovered drugs.   This satisfied the requirement that “the witness can presently testify that the record correctly represented his knowledge and recollection when made” (id. at 8, 586 N.Y.S.2d 545, 598 N.E.2d 693).

The record fails to support defendant's claim that the court refused to admit testimony given at a prior trial of this case.   On the contrary, the record reveals that defendant merely alluded to the possibility of making such an application and that the court made no ruling on the subject.   In any event, defendant failed to establish the admissibility of the prior testimony under CPL 670.10.

We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.