People v. Janes

May 7, 1999
Versions:261 A.D.2d 890
689 N.Y.S.2d 911
1999 N.Y. App. Div. LEXIS 4938

—Judgment unanimously affirmed. Memorandum: Defendant did not object to the omission of an alibi charge and thus failed to preserve that issue for our review (see, CPL 470.05 [2]; People v Whalen, 59 NY2d 273, 279-280; People v Rivera, 256 AD2d 1098; People v Hale, 124 AD2d 1025, lv denied 69 NY2d 881). Also unpreserved for our review is the contention of defendant that there was an insufficient evidentiary foundation for the tape recording (see, CPL 470.05 [2]). In any event, that contention is without merit (see, People v Ely, 68 NY2d 520, 527; People v McGee, 49 NY2d 48, 59, cert denied sub nom. Waters v New York, 446 US 942; see also, People v Lubow, 29 NY2d 58, 68; People v Gandy, 152 AD2d 909, lv denied 74 NY2d 896). Upon our review of the tape recording, we conclude that County Court properly exercised its discretion in overruling defendant’s inaudibility objection (see, People v Scarbrough, 254 AD2d 824, lv denied 92 NY2d 1038; People v Wade, 173 AD2d 662; People v Watson, 172 AD2d 882, 883). Finally, the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). (Appeal from Judgment of Cayuga County Court, Corning, J. — Criminal Sale Marihuana, 2nd Degree.) Present — Denman, P. J., Hayes, Wisner, Hurlbutt and Callahan, JJ.