| People v Owens |
| 2007 NY Slip Op 07022 [43 AD3d 1185] |
| September 25, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Steven Owens, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Daniel M. Reback of counsel), forrespondent.
Appeals by the defendant from two judgments of the County Court, Orange County (DeRosa,J.), both rendered September 8, 2004, convicting him of attempted criminal possession of acontrolled substance in the fourth degree under indictment No. 03-00513, upon his plea of guilty,and criminal possession of a controlled substance in the third degree (two counts) and criminalsale of a controlled substance in the third degree (two counts) under indictment No. 04-00011,upon a jury verdict, and imposing sentences.
Ordered that the judgments are affirmed.
The County Court providently exercised its discretion in denying, without a hearing, thedefendant's motion to withdraw his plea of guilty under indictment No. 03-00513, since thedefendant's unsubstantiated claim of dissatisfaction with his attorney's representation was refutedby his statements during the plea allocution (see People v Rangolan, 295 AD2d 543[2002]; People v Weekes, 289 AD2d 599 [2001]). Moreover, "[t]he defense counsel'sfailure to effectuate the defendant's intention to testify before the grand jury, standing alone, doesnot constitute the denial of effective assistance of counsel" (People v Sherrod, 306 AD2d503, 503 [2003]; see People v Wiggins, 89 NY2d 872, 873 [1996]; People v Venable, 7 AD3d 647,648 [2004]).
Contrary to the defendant's contention, the trial court did not improvidently exercise itsdiscretion in closing the courtroom during the trial testimony of two undercover policeinvestigators. Testimony from one of the investigators at the Hinton hearing (seePeople v Hinton, [*2]31 NY2d 71 [1972], cert denied410 US 911 [1973]), established, inter alia, that they were still active in undercover work inthe area of the defendant's arrest, they had identified suspects who had not yet been arrested, andtheir safety would be jeopardized and they would likely be prevented from conducting furtherundercover work if compelled to testify in open court (see People v Martinez, 82 NY2d436, 442-443 [1993]; People v Lopez,19 AD3d 510, 511 [2005]; People v Green, 244 AD2d 571 [1997]; People vWells, 225 AD2d 567, 568 [1996]; cf. People v Kin Kan, 78 NY2d 54, 58 [1991]).
The prosecutor did not violate the scope of the court's Sandoval ruling (seePeople v Sandoval, 34 NY2d 371 [1974]), when he questioned the defendant regarding theclasses of the defendant's prior convictions (see People v Andrews, 216 AD2d 571, 572[1995]).
The defendant's contention that various comments made by the prosecutor during summationwere improper and deprived him of a fair trial is unpreserved for appellate review, as thedefendant did not object to the remarks at issue and his motion for a mistrial after the completionof summations was untimely (see Peoplev Salnave, 41 AD3d 872, 874 [2007]; People v Morris, 148 AD2d 552, 552-553[1989]). In any event, the challenged remarks did not exceed the bounds of rhetorical commentpermissible in closing argument and constituted either fair comment upon the evidence presentedor fair response to the defense summation (see People v Galloway, 54 NY2d 396, 399[1981]; People v McHarris, 297 AD2d 824, 825 [2002]).
The defendant failed to preserve for appellate review his contentions regarding the in-courtidentification testimony by an undercover police officer (see CPL 470.05 [2]; Peoplev Clark, 41 NY2d 612, 616 [1977], cert denied 434 US 864 [1977]). In any event, thecontentions are without merit. The investigator's trial testimony that he saw the defendant at aprior court proceeding at which the defendant was represented by counsel, was not subject toCPL 710.30 notice (see People v White, 73 NY2d 468, 474-475 [1989]). Moreover,"[u]nder CPL 60.30, a witness's testimony as to identifications he or she made at prior courtproceedings are admissible notwithstanding their bolstering effect on the witness's testimony"(People v Rosario, 186 AD2d 598, 599 [1992]).
The defendant's contentions raised in his supplemental pro se brief regarding ineffectiveassistance of counsel are without merit (see People v Baldi, 54 NY2d 137, 151-152[1981]). Crane, J.P., Goldstein, Skelos and Carni, JJ., concur.