| People v Luckey |
| 2010 NY Slip Op 04245 [73 AD3d 568] |
| May 18, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Ronald Luckey, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), forrespondent.
Judgment, Supreme Court, New York County (Roger S. Hayes, J.), rendered May 29, 2008,as amended June 18, 2008, convicting defendant, after a jury trial, of criminal sale of acontrolled substance in the third degree, and sentencing him, as a second felony drug offender, toa term of five years, unanimously affirmed.
The court properly exercised its discretion in precluding a letter offered by defendant as adeclaration against penal interest (see People v Settles, 46 NY2d 154, 167-170 [1978]).Defendant was charged with supplying drugs to another person in return for prerecorded buymoney that the other person had obtained from an undercover officer minutes earlier. Defendantoffered a letter from this person, in which she claimed the transfer of money had been therepayment of a debt, and that she didn't know it was "marked." Defendant did not establish thatthe author of the letter could not be located, intended to invoke her Fifth Amendment privilege ifcalled, or was otherwise unavailable as a witness (see People v Coleman, 69 AD3d 430 [2010]). Furthermore, theletter was not against the author's penal interest; on the contrary, it appeared to be crafted toavoid any admission of guilt. Finally, there was nothing to confirm the letter's reliability. Sincethis evidence was neither reliable nor critical to establish defendant's defense, we rejectdefendant's argument that he was constitutionally entitled to introduce it (see Chambers vMississippi, 410 US 284 [1973]; People v Robinson, 89 NY2d 648, 654 [1997]; People v Burns, 18 AD3d 397[2005], affd 6 NY3d 793 [2006]).
Defendant did not preserve his claim that the court should have charged the jury on theprinciples governing the use of a defendant's allegedly false exculpatory statements asconsciousness-of-guilt evidence, and we decline to review it in the interest of justice. As analternative holding, we find there was no need for such an instruction, because the prosecutornever asked the jury to draw any such inference. Defendant's claim that his counsel renderedineffective assistance by failing to request such a charge is unreviewable on the present record.[*2]Defendant's attorney could have had a sound strategic reasonfor avoiding a charge that would have unnecessarily highlighted damaging evidence.Concur—Tom, J.P., McGuire, Moskowitz, Acosta and Freedman, JJ.