Opinion
2714
December 31, 2002.
Judgment, Supreme Court, Bronx County (Richard Price, J.), rendered January 9, 2002, convicting defendant, after a non-jury trial, of criminal sale of a controlled substance in the fourth degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.
William K. Clark III, for Respondent.
Robert B. Garcia, for Defendant-Appellant.
Before: WILLIAMS, P.J., MAZZARELLI, BUCKLEY, FRIEDMAN, MARLOW, JJ.
Although criminal sale of a controlled substance in the fourth degree is not a lesser included offense of either criminal sale of a controlled substance in or near school grounds or criminal sale of a controlled substance in the third degree, the crimes for which defendant was indicted, defendant waived that objection by specifically requesting the submission of fourth-degree sale (People v. Ford, 62 N.Y.2d 275; People v. Shaffer, 66 N.Y.2d 663, 664-665). Defendant's challenge to the sufficiency of the evidence is unpreserved (People v. Gray, 86 N.Y.2d 10;see also People v. Dekle, 56 N.Y.2d 835, 837), and we decline to review it in the interest of justice, particularly since defendant himself sought and received the benefit of being convicted of the less serious charge of fourth-degree sale (see Shaffer, supra).
The court properly exercised its discretion in receiving evidence that immediately prior to the instant undercover sale, defendant had an encounter with another person that was suggestive of an offer to sell drugs. This testimony was properly admitted to complete the narrative of the charged crime in that it permitted the undercover officer to explain the circumstances of his meeting with defendant, leading up to the sale for which he was arrested (see People v. Brown, 211 A.D.2d 405; People v. Crespo, 203 A.D.2d 182, lv denied 84 N.Y.2d 824). Moreover, this evidence was not unduly prejudicial (see People v. Pressley, 216 A.D.2d 202, lv denied 86 N.Y.2d 800), especially in a non-jury trial where the court is presumed to have disregarded prejudicial aspects of evidence (see People v. Moreno, 70 N.Y.2d 403).
The record establishes that defendant received meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 713-714;Strickland v. Washington, 466 U.S. 668). Trial counsel's consent to closure of the courtroom during the testimony of two officers did not deprive defendant of effective assistance, particularly since counsel stated that no one interested in defendant's case would be attending the trial, and the prosecution established on the record adequate reasons for the closure even if defense counsel had challenged it.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.