People v. Rivera

94 N.Y.2d 908 (2000)

729 N.E.2d 339

707 N.Y.S.2d 620

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. PAUL RIVERA, Appellant.

Court of Appeals of the State of New York.

Argued February 17, 2000.

Decided March 30, 2000.

*909 Office of the Appellate Defender, New York City (Risa Gerson, Richard M. Greenberg and Daniel A. Warshawsky of counsel), for appellant.

Robert M. Morgenthau, District Attorney of New York County, New York City (Rona Feinberg and Sylvia Wertheimer of counsel), for respondent.

Before: Chief Judge KAYE and Judges BELLACOSA, SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur.

MEMORANDUM.

The order of the Appellate Division should be affirmed.

As part of the New York City Police Department's investigation into the sale of heroin in Upper Manhattan, an undercover officer engaged in a brief conversation with defendant, defendant made a telephone call and then the officer purchased drugs. The transaction, including the officer's conversation with defendant, was recorded on videotape, which contained an audio component. The People sought to introduce the videotape into evidence at trial. Defense counsel, who had a copy of the tape and an opportunity to review it with his client, moved for an audibility hearing. The Trial Judgewith counsel, but not defendant, presentfirst listened to the tape, to determine sound quality. He then ruled, in defendant's presence, that the *910 tape was audible and would be admitted. Defense counsel, however, argued that portions of the tape were inaudible and should be excluded. The Judge heard and rejected defendant's arguments, and the tape was played for the jury. Defendant was convicted of second-degree conspiracy and second-degree criminal sale of a controlled substance. On appeal, he argued that his right to be present at a material stage of trial had been impaired. The Appellate Division affirmed his conviction, as do we.

The Trial Judge did not exclude defendant from a material stage of trial when he first simply listened to the tape, outside defendant's presence, to determine sound quality. No arguments were heard at that juncture. Under these circumstances, defendant's presence would have been "`useless or the benefit but a shadow'" (People v Velasco, 77 NY2d 469, 473, quoting Snyder v Massachusetts, 291 US 97, 106-107). Indeed, defendant and his counsel, who previously had a copy of the tape, were present for all arguments regarding the tape's audibility and the Judge's rulings with respect thereto. Defendant's remaining argument is without merit.

Order affirmed in a memorandum.