| People v Garcia |
| 2009 NY Slip Op 07273 [66 AD3d 699] |
| October 6, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JoseGarcia, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Andrew R. Kass of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County(Rosenwasser, J.), rendered April 14, 2005, convicting him of criminal sale of a controlledsubstance in the first degree, criminal sale of a controlled substance in the second degree,criminal possession of a controlled substance in the second degree, and criminal possession of acontrolled substance in the third degree (two counts), upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's contention that his right to be present at all material stages of the trial(see generally People v Antommarchi, 80 NY2d 247 [1992]) was violated when theCounty Court held a sidebar discussion with prospective jurors out of his presence is withoutmerit. "[T]he determination that a prospective juror was disqualified before voir dire was amatter for the court and defendant had no statutory or constitutional right to personallyparticipate in the discussions leading to the court's ruling" (People v Velasco, 77 NY2d469, 473 [1991]; see People v Miles,58 AD3d 872 [2009]).
The trial court properly declined the defendant's request to charge the jury with theaffirmative defense of entrapment since no reasonable view of the evidence supported thatdefense (see Penal Law § 40.05; People v Butts, 72 NY2d 746, 750[1988]; People v Santos, 38 AD3d574, 575 [2007], cert denied 552 US — , 128 S Ct 399 [2007]; People v Skervin, 17 AD3d 771,771-772 [2005]). Rather, the evidence demonstrated that an undercover detective merelyafforded the defendant the opportunity to commit the offenses, which, standing alone, wasinsufficient to warrant an entrapment charge (see People v Brown, 82 NY2d 869,871-872 [1993]; People v Vega, 23AD3d 504, 505 [2005]; People vMoultrie, 5 AD3d 241, 242 [2004]; People v Delaney, 309 AD2d 968 [2003]).
Moreover, where, as here, the confidential informant's participation was minimal, there wasno close question at trial as to identification, and the evidence of guilt was overwhelming, thetrial court properly denied the defendant's application for disclosure of the informant's identity(see People v Vega, 23 AD3d at 505; People v Chavis, 113 AD2d 896, 897[1985]; People v Gilmore, 106 AD2d 399 [1984]), and for a missing witness charge(see generally People v Gonzalez, 68 NY2d 424 [1986]).[*2]
The defendant's contention that he was deprived of a fairtrial by certain comments the prosecutor made on summation is unpreserved for appellatereview, as the defendant failed to object to the challenged comments (see CPL 470.05[2]). In any event, the challenged comments constituted fair comment on the evidence and fairresponse to defense counsel's summation (see People v Galloway, 54 NY2d 396 [1981];People v Lenoir, 57 AD3d 802,803 [2008]; People v Crawford, 54AD3d 961, 962 [2008]).
Contrary to the defendant's contention, he received the effective assistance of counsel(see People v Benevento, 91 NY2d 708, 713-714 [1998]; People v Baldi, 54NY2d 137, 146-147 [1981]).
The defendant failed to preserve for appellate review his contention that the sentenceimposed by the County Court improperly penalized him for exercising his right to a jury trial,because he did not set forth the issue on the record at the time of sentencing (see People vHurley, 75 NY2d 887, 888 [1990]; People v Smith, 49 AD3d 904, 906 [2008]; People v Gillian, 28 AD3d 577[2006]; People v Chapero, 23AD3d 492, 493 [2005]). In any event, the fact that the sentence imposed after trial wasgreater than the sentence offered during plea negotiations is no indication that the defendant waspunished for asserting his right to proceed to trial (see People v Pena, 50 NY2d 400, 411[1980]; People v Smith, 49 AD3d at 906; People v Davis, 27 AD3d 761, 762 [2006]). Moreover, thesentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's contention raised in point five of his brief is without merit. The defendant'sremaining contention, raised in point seven of his brief, is unpreserved for appellate review and,in any event, is without merit. Mastro, J.P., Balkin, Dickerson and Lott, JJ., concur.