| People v Bilal |
| 2010 NY Slip Op 09282 [79 AD3d 900] |
| December 14, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v ShateekBilal, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff, Richard Longworth Hecht,Anthony J. Servino, and Lois Cullen Valerio of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (R.Bellantoni, J.), rendered August 20, 2007, convicting him of criminal sale of a controlled substance in ornear school grounds (two counts), criminal sale of a controlled substance in the third degree (twocounts), criminal possession of a controlled substance in the third degree (two counts), and criminalpossession of a controlled substance in the seventh degree (two counts), upon a jury verdict, andimposing sentence.
Ordered that the judgment is modified, on the law, by vacating the convictions of criminalpossession of a controlled substance in the seventh degree (two counts), vacating the sentencesimposed thereon, and dismissing those counts of the indictment; as so modified, the judgment isaffirmed.
The defendant's contention that his convictions were not supported by legally sufficient evidence isunpreserved for appellate review, as defense counsel's motion for dismissal lacked any specificity(see CPL 470.05 [2]; People vHawkins, 11 NY3d 484, 491-492 [2008]). In any event, viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that itwas legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon theexercise of our factual review power, we are satisfied that the verdict of guilt was not against the weightof the evidence (see CPL 470.15 [5]; People v Romero, 7 NY3d 633 [2006]).
Contrary to the People's assertion, the defendant's contention regarding the admission of hearsayevidence was preserved for appellate review (see CPL 470.05 [2]; People v Ayala,142 AD2d 147, 156 [1988], affd 75 NY2d 422 [1990]). However, it is without merit, as ineach instance, the testimony that, at some point, the witness learned a transaction had been completed,was offered not as proof that there had been a transaction, but "to provide necessary backgroundinformation to the jury" (People vJohnson, 40 AD3d 1011, 1012 [2007]; see People v Tosca, 98 NY2d 660, 661[2002]).[*2]
The defendant was not deprived of a fair trial by the SupremeCourt's refusal to allow him to display his burns, tattoos, and gold teeth in support of his defense ofmistaken identity, since his sister was permitted to testify regarding these features (see People vMendez, 138 AD2d 637, 638 [1988]).
The defendant's challenge to certain remarks made by the prosecutor during her summation is notpreserved for appellate review, as no objection was made at the time (see CPL 470.05 [2]). Inany event, the challenged remarks do not require reversal (see People v Mereness, 43 AD3d 473 [2007]; People v Bradley, 38 AD3d 793, 794[2007]).
The Supreme Court providently exercised its discretion in denying, without a hearing, thedefendant's application, submitted as part of his CPL 330.30 motion, for a reconstruction hearing todetermine retrospectively his mental competency during the trial. "A defendant is presumed competentand the court is under no obligation to issue an order of examination unless it has reasonable ground. . . to believe that the defendant was an incapacitated person" (People v Morgan,87 NY2d 878, 880 [1995] [internal quotation marks and citations omitted]). The presumption ofcompetency "cannot be rebutted by a mere showing that the defendant has a history of mental illness"(People v Hansen, 269 AD2d 467, 467 [2000]; see People v Tortorici, 92 NY2d757, 765 [1999], cert denied 528 US 834 [1999]; People v Morgan, 87 NY2d at881; People v Galea, 54 AD3d686, 687 [2008]), nor is a subsequent finding of mental illness evidence of a lack of competencyduring the subject time period (see People v Gelikkaya, 84 NY2d 456, 459-460 [1994]).Here, there is nothing in the record "to indicate that during trial . . . the defendant did nothave a sufficient present ability to consult with [his] lawyer with a reasonable degree of rationalunderstanding or have a rational as well as factual understanding of the proceedings against [him]"(People v Greco, 177 AD2d 648 [1991]; see Dusky v United States, 362 US 402[1960]; People v Francabandera, 33 NY2d 429 [1974]).
As the People correctly concede, the defendant's convictions of two counts of criminal possessionof a controlled substance in the seventh degree must be vacated, the sentences thereon must bevacated, and those counts of the indictment dismissed, as they are inclusory concurrent counts ofcriminal possession of a controlled substance in the third degree (see CPL 300.40 [3] [b]).
The remaining arguments set forth in the defendant's supplemental pro se brief are without merit.Prudenti, P.J., Dillon, Balkin and Chambers, JJ., concur.