The opinion of the court was delivered by: Pigott, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
The New York Drug Enforcement Task Force obtained an eavesdropping warrant on July 21, 2005, in order to intercept the cellphone calls of George Cabrera, a Queens drug-dealer. Another target of the warrant was a person later identified as defendant Rafael Rodriguez, also known as "Rafi." Agents recorded a number of Cabrera's conversations, including several that occurred on August 1, 2005 during which Cabrera spoke with defendant and with Willie "Buddha" Smith.
In the first call, using coded language, which Cabrera interpreted at defendant's trial, Smith confirmed with Cabrera that he wanted to buy 150 grams of cocaine. The two men had agreed on a price for this transaction the previous day. When Smith asked how long it would take Cabrera to get the cocaine, he replied that he would need to ask "Rafi." As Cabrera explained at trial, he was referring to defendant, who had agreed to obtain the drugs in Manhattan, in exchange for a share in the profits. Minutes later, Cabrera phoned defendant, expecting him to be in Manhattan. Defendant was still in Queens, but assured Cabrera he had time to do the job. Cabrera told defendant to go to Manhattan immediately, and then called Smith to ask for an extension of a few hours.
In a call later that afternoon, Cabrera told defendant that he was going to meet Smith at 6 p.m. Defendant said he would join Cabrera. Cabrera confirmed arrangements with Smith, and picked defendant up at a street corner in Manhattan. Defendant told Cabrera that he was going to get the cocaine from a dealer nearby and had Cabrera drive to an intersection two blocks away. There Cabrera stepped out of the car. While Cabrera was talking with an acquaintance, he noticed a man walk by his vehicle and, upon returning, was told by defendant that the cocaine was now in his car.
Defendant and Cabrera drove to Queens. At about 6:40 p.m., Smith walked to a preassigned meeting place just as defendant and Cabrera arrived. Smith got into the back seat of Cabrera's vehicle. Smith, meanwhile, was the target of an investigation unrelated to the Drug Enforcement Task Force's, and an NYPD detective, Constantine Papadopoulos, was sitting in an unmarked car conducting surveillance. Papadopoulos observed Smith talking with defendant and Cabrera, saw money in Smith's hands, and noticed Cabrera lean forward to get a black plastic bag from defendant. At this point, Detective Papadopoulos and his partner arrested the three men. Papadopoulos found a black plastic bag where defendant had been sitting. Cabrera had $750 on his person. Smith had $155, and $4000 was found where he had been sitting in the vehicle. The plastic bag contained more than 5 ounces of cocaine.
After the Drug Enforcement Task Force learned that Cabrera had been arrested by the NYPD, it "rearrested" Cabrera, along with defendant and Smith. Cabrera was charged in federal court in relation to an unrelated 2004 heroin deal. Cabrera pleaded guilty in the federal case; the mandatory minimum for the offense was 120 months' imprisonment.
Defendant first learned that he had been a subject of an eavesdropping warrant at his arraignment on December 21, 2005. A week later, he was charged by indictment with criminal sale of a controlled substance in the first degree (Penal Law § 220.34
) and conspiracy in the second degree (Penal Law § 105.15). Cabrera was charged with the same crimes. (Smith, meanwhile, pleaded guilty to criminal possession of a controlled substance in the second degree, and was sentenced to three and a half years' imprisonment.)
In an omnibus motion filed in April 2006, defendant moved to suppress the intercepted phone calls on the ground that the prosecution had failed to give him notice of the warrant as required by CPL 700.50 (3). Although a written decision by Supreme Court on this issue is not extant, it appears clear from a later Mapp/Dunaway ruling that the court considered, but denied, defendant's request for suppression of the phone calls, without holding a hearing on the issue. In any case, no suppression motion was granted.
In October 2007, Cabrera entered into a cooperation agreement with the Office of the Special Narcotics Prosecutor. With respect to his August 1 arrest, Cabrera pleaded guilty to criminal sale of a controlled substance in the third degree. The prosecutor agreed to a reduced sentence of one year's imprisonment, to be served concurrently with Cabrera's federal sentence, if Cabrera testified truthfully at defendant's trial.
Shortly thereafter, defendant proceeded to a jury trial. Cabrera testified at length, against defendant. Six of eight intercepted calls were played for the jury, and transcripts of all the conversations were introduced into evidence. Detective Papadopoulos testified as well.
For his part, defendant placed Cabrera's cooperation agreement into evidence, and cross-examined Cabrera on it. Defendant did not testify or introduce witnesses. In summation, defense counsel argued that this was a case of mistaken identity -- defendant and "Rafi" were not the same person -- and urged the jury not to credit Cabrera's testimony.
The jury found defendant guilty as charged. At sentencing, the prosecutor argued that only a trusted member of a narcotics organization could have obtained such a large amount of cocaine and recommended a 15-year prison sentence on the sale count. Defense counsel sought an 8-year term for that count, noting that defendant's criminal record was far less extensive than Cabrera's and that defendant had been offered 5 years' imprisonment in exchange for a guilty plea. Supreme Court sentenced defendant to concurrent terms of 17 years' imprisonment on the sale count and 5 to 15 years' imprisonment on the conspiracy count. Subsequently, Supreme Court imposed 5 years' postrelease supervision on defendant, doing so in his absence.
On appeal, defendant made several arguments, including the contentions that he should have been granted a suppression hearing in regard to the eavesdropping warrant issue, that his postrelease supervision term had been illegally imposed in his ...