| People v Green |
| 2011 NY Slip Op 02115 [82 AD3d 593] |
| March 24, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Edward Green, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Britta Gilmore of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered October8, 2008, convicting defendant, after a jury trial, of criminal possession of a controlled substancein the first and third degrees and two counts of criminally using drug paraphernalia in the seconddegree, and sentencing him, as a second felony drug offender, to an aggregate term of 15 years,unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence. Moreover, the evidence overwhelmingly established that defendant was a participant ina drug-selling operation and a possessor of contraband found in two apartments being used asdrug factories.
Defendant has not established a violation of the principles of People v O'Rama (78NY2d 270 [1991]) in connection with a note from the deliberating jury. Before deliberationsbegan, defense counsel expressly agreed to permit the jury to examine the exhibits in evidence. Inthe note in question on appeal, the jury requested permission to open an evidence bag and try akey in a lock. Under the circumstances of the case, this was not a request to perform anexperiment or demonstration, but was essentially a request to apply "everyday experiences,perceptions, and common sense" (People v Gomez, 273 AD2d 160, 161 [2000], lvdenied 95 NY2d 890 [2000]) in handling the exhibit. Accordingly, the request wasministerial rather than substantive (cf.People v Kelly, 5 NY3d 116, 120 [2005]), and there was no need for input from counsel.
The court properly conducted an in camera, ex parte hearing concerning an informant'sexistence and his communications to the police, in accordance with People v Darden (34NY2d 177 [1974]). Defendant incorrectly asserts that this hearing also constituted a generalsuppression hearing at which he had a right to be present. After the hearing, the court informedthe parties that the hearing testimony raised issues that might warrant an adversarial suppressionhearing, and released pertinent portions of that testimony. The court made no determinationsregarding those issues at that time, and offered defendant the opportunity to litigate them at aconventional hearing. Defense counsel declined the offer of a hearing, and chose to rely onwritten submissions and the Darden hearing minutes. Accordingly, defendant waived anyobjection to the procedure by which the court resolved the suppression issues (cf. People v Jenkins, 38 AD3d 230[2007], lv denied 8 NY3d 986 [2007]).[*2]
Defendant received effective assistance of counsel underthe state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998];see also Strickland v Washington, 466 US 668 [1984]). Defendant has not shown areasonable probability that counsel's isolated error in opening the door to the introduction of twoof defendant's prior convictions affected the outcome of the trial, given the overwhelmingevidence of guilt. The additional ineffective assistance arguments raised in defendant's pro sesupplemental brief are unreviewable on direct appeal because they involve matters outside therecord (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d998 [1982]).
The court properly exercised its discretion in determining that defense counsel's openingstatement opened the door to admission of an item of physical evidence that the court hadsuppressed (see People v Massie, 2 NY3d 179, 183-185 [2004]). In any event, any errorin admitting this evidence was harmless (see People v Crimmins, 36 NY2d 230 [1975]).Concur—Gonzalez, P.J., Catterson, Richter, Abdus-Salaam and RomÁn, JJ.[Prior Case History: 20 Misc 3d 1133(A), 2008 NY Slip Op 51711(U).]