Opinion
2012-06-13
The PEOPLE, etc., respondent, v. Henry TORRES, appellant.
William J. Reddy, New City, N.Y., for appellant. Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel; Selha Abed, Salvatore Perrotto, and Akiva Schoenfeld on the brief), for respondent.
William J. Reddy, New City, N.Y., for appellant. Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel; Selha Abed, Salvatore Perrotto, and Akiva Schoenfeld on the brief), for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Rockland County (Alfieri, J.), rendered January 4, 2010, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the record reveals that the prosecutor sought, and the Supreme Court made, a pretrial Molineux ruling ( see People v. Molineux, 168 N.Y. 264, 61 N.E. 286). The defendant's contention that the court erred in admitting evidence of uncharged crimes and in failing to give a limiting instruction to the jury regarding use of this evidence is unpreserved for appellate review since the defendant neither raised the arguments asserted on appeal, requested that the court give such an instruction to the jury, nor objected to the charge as given ( seeCPL 470.05[2]; People v. Williams, 50 N.Y.2d 996, 998, 431 N.Y.S.2d 477, 409 N.E.2d 949). In any event, the defendant's contention is without merit.
The defendant's contention that the prosecutor untimely disclosed the criminal records of one of the People's witnesses ( seeCPL 240.45[1][b] ) also is unpreserved for appellate review ( seeCPL 470.05[2] ). In any event, since the defendant was made aware of the witness's criminal history and used it for impeachment purposes, he was not prejudiced by the late disclosure ( see People v. Osborne, 91 N.Y.2d 827, 828, 666 N.Y.S.2d 556, 689 N.E.2d 526;People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349;People v. Olibencia, 45 A.D.3d 607, 608, 845 N.Y.S.2d 398;People v. Baines, 270 A.D.2d 281, 704 N.Y.S.2d 129;People v. Lane, 221 A.D.2d 371, 633 N.Y.S.2d 350).
The Supreme Court did not improvidently exercise its discretion in granting the People's request to close the courtroom during the testimony of one of the witnesses. At a hearing on the issue, the witness, two detectives, and a court officer testified that several people had threatened the witness while he was walking into the courtroom that morning and while he was on the stand earlier that day, and the witness testified that he feared for his safety. Accordingly, the court had before it sufficient facts to justify the closure of the courtroom ( see Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31;People v. Frost, 100 N.Y.2d 129, 137, 760 N.Y.S.2d 753, 790 N.E.2d 1182;People v. Graham, 200 A.D.2d 686, 687, 606 N.Y.S.2d 780;People v. Mack, 178 A.D.2d 661, 662, 577 N.Y.S.2d 892;United States ex rel. Bruno v. Herold, 408 F.2d 125,cert. denied397 U.S. 957, 90 S.Ct. 947, 25 L.Ed.2d 141;United States ex rel. Orlando v. Fay, 350 F.2d 967,cert. denied sub nom. Orlando v. Follette, 384 U.S. 1008, 86 S.Ct. 1961, 16 L.Ed.2d 1021).
The defendant's contentions that the prosecutor's summation remarks constituted reversible error because he vouched for the credibility of one of the People's witnesses and made remarks that were denigrating to the defense are unpreserved for appellate review because he failed to object to any of the comments ( seeCPL 470.05[2]; People v. Tonge, 93 N.Y.2d 838, 840, 688 N.Y.S.2d 88, 710 N.E.2d 653;People v. Dien, 77 N.Y.2d 885, 886, 568 N.Y.S.2d 899, 571 N.E.2d 69;People v. Balls, 69 N.Y.2d 641, 641, 511 N.Y.S.2d 586, 503 N.E.2d 1017). In any event, the comments alleged to be prejudicial either were responsive to arguments and theories presented in the defense summation ( see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;People v. McCoy, 89 A.D.3d 1110, 933 N.Y.S.2d 583;People v. Carey, 67 A.D.3d 925, 888 N.Y.S.2d 615;People v. Williams, 52 A.D.3d 851, 861 N.Y.S.2d 713;People v. Dominique, 36 A.D.3d 624, 626, 831 N.Y.S.2d 85;People v. Holguin, 284 A.D.2d 343, 725 N.Y.S.2d 572), or constituted harmless error ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).
The defendant was not deprived of the effective assistance of counsel, as the record reveals that defense counsel provided meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
Contrary to the defendant's contention, the Supreme Court did not impermissibly punish him for exercising his right to proceed to trial ( see People v. Melendez, 71 A.D.3d 1166, 1167, 898 N.Y.S.2d 224). The defendant was convicted of criminal possession of a controlled substance in the third degree, a class B felony ( seePenal Law § 220.16[1] ) and criminal sale of a controlled substance in the third degree, also a class B felony ( seePenal Law § 220.39[1] ). Since he was a second felony drug offender ( seePenal Law §§ 70.06[1], 70.70[1][b] ), whose previous conviction for burglary in the second degree was a violent felony ( seePenal Law § 70.02[1][b]; § 140.25), the Supreme Court was required to impose a determinate sentence of 6 to 15 years of imprisonment for each conviction ( seePenal Law § 70.70[4] [b] [i] ). In imposing a determinate term of 10 years of imprisonment on each count, which fell in the middle of the sentencing range, the court carefully considered, inter alia, the defendant's criminal history, as well as the safety of the community.
The defendant's remaining contention is without merit.