| People v Watts |
| 2009 NY Slip Op 00234 [58 AD3d 647] |
| January 13, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Herbert Watts, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce Slevin, andMaria Park of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kreindler,J.), rendered January 3, 2002, convicting him of criminal possession of a controlled substance inthe first degree and criminal possession of marijuana in the fifth degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial (Ambrosio, J.), without a hearing,of the defendant's motion to suppress physical evidence and the denial (Kreindler, J.), after ahearing, of that branch of the defendant's omnibus motion which was to suppress statementsmade to law enforcement officials.
Ordered that the judgment is affirmed.
The affidavit and testimony of a detective of the New York City Police Department and thetestimony of a confidential police informant (hereinafter the informant) proffered by the Peoplein support of the challenged search warrant application were sufficient to support a reasonablebelief that evidence of illegal activity would be present at the premises to be searched (see People v Diaz, 11 AD3d 476,477 [2004]; cf. People v Edwards, 69 NY2d 814, 816 [1987]). Thus, the Supreme Courtproperly denied the motion to controvert the search warrant and to suppress physical evidenceseized pursuant to the search warrant (see People v Diaz, 11 AD3d at 477; People v Green, 10 AD3d 731,732 [2004]; see also People v Edwards, 69 NY2d at 816). Further, the Supreme Courtproperly determined that once the police executed the search warrant and recovered cocaine andmarijuana from the defendant's apartment, they had probable cause to arrest him (see People v Moore, 6 NY3d 496,499 [2006]; People v De Bour, 40 NY2d 210, 223 [1976]; People v Ortiz, 103AD2d 303, 306-307 [1984], affd 64 NY2d 997 [1985]). [*2]Accordingly, that branch of the defendant's omnibus motion whichwas to suppress statements he made to law enforcement officials was properly denied.
Contrary to the defendant's contention, he was not denied a fair trial on the ground that theverdict sheet unduly emphasized the "guilty" option by listing it before the "not guilty" option.The verdict sheet, which included the offenses to be considered and the possible verdicts,complied with CPL 310.20, was entirely neutral, and did not unduly emphasize the "guilty"option (see CPL 310.20 [2]; People v Manzano, 300 AD2d 679 [2002];People v Phillips, 272 AD2d 559 [2000]; cf. People v Spivey, 81 NY2d 356, 361[1993]).
The defendant's contention that his Sixth Amendment right of confrontation was violatedbecause the People failed to call the informant as a witness at trial is unpreserved for appellatereview (see CPL 470.05 [2]). In any event, the People have "broad discretion" in thepresentation of their case at trial; a prosecutor need not put on any witness whose testimonywould be unreliable, cumulative, or irrelevant (People v Andre W., 44 NY2d 179, 184[1978]; People v Sapia, 41 NY2d 160, 163 [1976], cert denied 434 US 823[1977]; People v Buckler, 39 NY2d 895, 897 [1976]; People v Stridiron, 33NY2d 287, 292 [1973]; People v Murray, 119 AD2d 702 [1986]; cf. People vBostick, 150 AD2d 707 [1989]).
The defendant's contention that the prosecutor made improper statements during summationis without merit. The remarks in question were either fair comment on the evidence (seePeople v Ashwal, 39 NY2d 105, 109-110 [1976]; People v Applewhite, 50 AD3d 1046, 1047 [2008]; People vMcHarris, 297 AD2d 824, 825 [2002]) or fair response to comments made by defensecounsel during summation (see People v McHarris, 297 AD2d at 825; People vIrving, 265 AD2d 575, 575-576 [1999]; People v Ingram, 205 AD2d 801 [1994]).
The remaining contentions raised in the defendant's supplemental pro se brief are withoutmerit. Skelos, J.P., Dillon, McCarthy and Eng, JJ., concur.