| People v Fishon |
| 2008 NY Slip Op 00616 [47 AD3d 591] |
| January 31, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Ronald Fishon, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Grace Vee of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered August 7,2006, convicting defendant, after a jury trial, of criminal sale of a controlled substance in thethird degree, and sentencing him, as a second felony offender, to a term of six years; judgment,same court (Edwin Torres, J., at trial; William A. Wetzel, J., at sentence), rendered November27, 2006, convicting defendant, after a jury trial, of criminal possession of a controlled substancein the seventh degree, and sentencing him to a concurrent term of one year; and judgment, samecourt (William A. Wetzel, J.), rendered November 27, 2006, convicting defendant, after a jurytrial, of three counts of perjury in the first degree, and sentencing him, as a second felonyoffender, to three consecutive terms of 2 to 4 years, to be served concurrently with the othersentences, unanimously affirmed.
At his first trial, defendant was charged with two drug sales, made to the same undercoverofficer but under different factual circumstances, about 30 minutes apart. Defendant asserted anagency defense with respect to both sales, and the jury convicted him of misdemeanor drugpossession as to the second sale but failed to agree on a verdict as to the first. At a retrial,defendant was convicted of the first sale. At each of these trials defendant testified and admittedthat his grand jury testimony concerning the two drug transactions had been false, and, at a thirdtrial, defendant was convicted of perjury on the basis of his false grand jury testimony.
At defendant's second trial, concerning the first drug sale by defendant to the undercoverofficer, the court properly exercised its discretion by precluding defendant from introducingevidence of the factually dissimilar second sale, of which he had been acquitted at his first trial.This evidence was of little or no probative value on the issue of whether defendant acted merelyas an agent of the undercover officer at the time of the first sale (see People v Primo, 96NY2d 351, 355 [2001]; People v Aska, 91 NY2d 979, 981 [1998]), but would haveprejudiced the People by causing the jury to speculate why defendant was not being tried for thatcrime in this second trial. This was not a situation where a defendant's contemporaneous, similartransactions were probative of issues such as intent (see e.g. People v Carter, 77NY2d 95, 107 [1990], cert [*2]denied 499 US 967[1991]). Since the only issue litigated was the relevance of this evidence as a matter of stateevidentiary law, and since defendant never asserted a constitutional right to introduce it, hispresent constitutional claim is unpreserved (People v Lane, 7 NY3d 888, 889 [2006]), and we decline to reviewit in the interest of justice. As an alternative holding, we also reject it on the merits. The court'sruling did not deprive defendant of a fair trial or his right to present a defense (see Crane vKentucky, 476 US 683, 689-690 [1986]).
Defendant also claims that at the second trial, the court failed to provide defense counselwith notice of a jury note and an opportunity to be heard regarding the court's response (seePeople v O'Rama, 78 NY2d 270 [1991]). However, defendant failed to make a record that issufficient to permit appellate review of this claim (see People v Kinchen, 60 NY2d 772,773-774 [1983]; People v Johnson,46 AD3d 415 [2007]). Moreover, a presumption of regularity attaches to judicialproceedings and may be overcome only by substantial evidence (see People v Velasquez, 1 NY3d44, 48 [2003]). Viewed in light of that presumption, the existing record, to the extent itpermits review, demonstrates that there was an unrecorded colloquy between the court andcounsel concerning the jury note immediately preceding the court's response. Although thatcolloquy should have been placed on the record, we find no basis for reversal. This case is unlikePeople v Kisoon (8 NY3d 129,135 [2007]), where the record established the court's failure to satisfy its "core responsibility" todisclose a jury note and permit comment by counsel.
At the first trial, at which defendant was convicted of seventh-degree possession relating tothe second transaction, the court made rulings on defendant's Sandoval motion and hisrequest for an adverse inference charge relating to the undercover officer's lost memo book, eachof which constituted a proper exercise of discretion. With respect to the second trial, hisarguments concerning these issues are unpreserved and we decline to review them in the interestof justice. As an alternative holding, we also reject them on the merits.
Defendant was not deprived of his right to conflict-free representation at his perjury trial. Thefact that the attorney who represented him at the two drug trials also represented him at theperjury trial did not create a potential conflict of interest, and even if such potential conflictexisted, defendant has not established that such potential conflict affected his defense (seePeople v Jordan, 83 NY2d 785, 787-788 [1994]). The perjury was committed whendefendant testified before the grand jury, where a different attorney represented him. The conductof the trial attorney was never an actual [*3]or potentialissue in any respect at the perjury trial, and that attorney would have had no reason to testify.
We perceive no basis for reducing the sentence. Concur—Andrias, J.P., Nardelli,Williams, Catterson and Moskowitz, JJ.