| People v Gonzalez |
| 2008 NY Slip Op 03711 [50 AD3d 527] |
| April 24, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v PeterGonzalez, Appellant. The People of the State of New York, Respondent, v Celeste Ortiz,Appellant. |
—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Carol A. Zeldin of counsel), forCeleste Ortiz, appellant. Robert M. Morgenthau, District Attorney, New York (Patricia Curran of counsel), forrespondent.
Judgments, Supreme Court, New York County (Marcy Kahn, J.), rendered March 2, 2006(defendant Gonzalez) and March 3, 2006 (defendant Ortiz), convicting defendants, after a jurytrial, of criminal sale of a controlled substance in the third degree, and sentencing each defendantto a term of 1 to 3 years, unanimously affirmed. The matter is remitted to Supreme Court, NewYork County, for further proceedings pursuant to CPL 460.50 (5) as to each defendant.
The verdicts are based on legally sufficient evidence and are not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinationsconcerning credibility and identification. The evidence satisfactorily explained the inability of thepolice to recover buy money from defendant Gonzalez, and there was no merit to defendantOrtiz's agency defense.
The court properly denied Ortiz's suppression motion. The hearing evidence established,circumstantially, that Ortiz was arrested because she matched the undercover officer's radioeddescription of one of the participants in a drug transaction (see People v Poole, 45 AD3d 501 [2007]).
The court properly denied defendants' challenge for cause to a prospective juror whodemonstrated difficulty understanding the court's preliminary charge on the People's burden of[*2]proof, since, after the court's further explanation of thatsubject, the panelist gave her unequivocal assurance that she understood the court's instructionsand would follow them (see People vSerrano, 19 AD3d 303 [2005], affd 7 NY3d 730 [2006]).
The court properly exercised its discretion in permitting jurors to submit questions towitnesses, subject to a careful screening process (see People v Miller, 8 AD3d 176, 177 [2004], mod on othergrounds 6 NY3d 295 [2006]). Defendants' assertion that certain questions revealed that theinquiring jurors had prematurely formed opinions on the merits is speculative.
The trial court properly denied defendants' CPL 330.30 (2) motions alleging jurormisconduct. The record supports the court's findings, made after a thorough hearing, that therewas no prejudicial misconduct that would warrant a new trial (see People v Rodriguez,100 NY2d 30, 35 [2003]).
Defendant Ortiz's ineffective assistance of counsel claims are unreviewable on direct appealbecause they involve matters outside the record with regard to counsel's strategic decisions andallegedly unprofessional demeanor (see People v Rivera, 71 NY2d 705, 709 [1988];People v Love, 57 NY2d 998 [1982]). On the existing record, to the extent it permitsreview, we find that Ortiz received effective assistance under the state and federal standards(see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland vWashington, 466 US 668 [1984]). Counsel made reasonable strategic decisions regarding theintroduction of character evidence, and in handling aspects of Ortiz's prior conviction.Concur—Tom, J.P., Mazzarelli, Williams and Sweeny, JJ.