| People v Slater |
| 2009 NY Slip Op 03208 [61 AD3d 1328] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v TerrenceSlater, Appellant. |
—[*1] Terrence Slater, defendant-appellant pro se. R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered August14, 2007. The judgment convicted defendant, upon a jury verdict, of criminal sale of a controlledsubstance in the third degree, criminal possession of a controlled substance in the third degree,and criminal possession of a controlled substance in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]),criminal possession of a controlled substance in the third degree (§ 220.16 [1]), andcriminal possession of a controlled substance in the fourth degree (§ 220.09 [1]). Therecord establishes that, prior to trial, a potential witness for the defense indicated that she wouldinvoke the Fifth Amendment in the event that defendant called her to testify. Defendant askedCounty Court to instruct the jury that he wished to call that person to testify on his behalf andthat he should not be penalized by her failure to do so. We reject the contention of defendant thatthe court erred in refusing to charge the jury in accordance with his request. Rather, we concludethat the court properly gave a neutral instruction to the jury concerning that witness, i.e., that itwas not to draw any inference from her failure to testify (see People v Tatro, 53 AD3d 781, 786-787 [2008], lvdenied 11 NY3d 835 [2008]; see generally People v Thomas, 51 NY2d 466, 472-473[1980]). Defendant failed to preserve for our review the contention in his pro se supplementalbrief that the affidavit of that witness should have been admitted in evidence as a declarationagainst penal interest inasmuch as defendant never sought to introduce the affidavit in evidence(see CPL 470.05 [2]), and we decline to exercise our power to review that contention asa matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Even assuming, arguendo, that defendant is correct that the court erred in itsMolineux ruling, we conclude that the error is harmless (see People v Laws, 27 AD3d 1116[2006], lv denied 7 NY3d 758 [2006]; see generally People v Crimmins, 36NY2d 230, 241-242 [1975]). We reject defendant's further contention that the court erred inimposing consecutive sentences for criminal sale of a [*2]controlled substance in the third degree and criminal possession ofa controlled substance in the third degree. "[T]he sale and possession charges involved separateand distinct acts, allowing imposition of consecutive sentences upon conviction" (People vFarga, 180 AD2d 484, 485 [1992], lv denied 80 NY2d 830 [1992]; see People vJohnson, 286 AD2d 929, 930 [2001], lv denied 97 NY2d 756 [2002]; People vWatson, 242 AD2d 924, 925 [1997], lv denied 91 NY2d 899 [1998]). The furthercontention of defendant that he was improperly penalized for exercising his right to a trial is notpreserved for our review (see People vGriffin, 48 AD3d 1233, 1236-1237 [2008], lv denied 10 NY3d 840 [2008]; People v Irrizarry, 37 AD3d 1082,1083 [2007], lv denied 8 NY3d 946 [2007]). In any event, we conclude that the sentenceimposed "was not the product of vindictiveness" (People v Thompson, 299 AD2d 889,890 [2002], lv denied 99 NY2d 585 [2003]; see Irrizarry, 37 AD3d at 1083). Thecontention of defendant in his pro se supplemental brief that the court erred in denying hisrequest for new counsel based on an alleged conflict of interest is based on matters dehors therecord, and thus it is not reviewable on direct appeal (see generally People v Scott, 60AD3d 1360 [2009]). Insofar as the further contention of defendant in his pro se supplementalbrief that he received ineffective assistance of counsel is also based on matters dehors the record,it is not reviewable on direct appeal (seePeople v Martina, 48 AD3d 1271, 1272-1273 [2008], lv denied 10 NY3d 961[2008]; People v Smith, 32 AD3d1291, 1292 [2006], lv denied 8 NY3d 849 [2007]), and we conclude on the recordbefore us that defendant's contention is otherwise without merit (see generally People vBaldi, 54 NY2d 137, 147 [1981]). Present—Scudder, P.J., Hurlbutt, Centra, Greenand Gorski, JJ.