| People v Torres |
| 2012 NY Slip Op 04783 [96 AD3d 881] |
| June 13, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v HenryTorres, Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel; SelhaAbed, Salvatore Perrotto, and Akiva Schoenfeld on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Rockland County (Alfieri,J.), rendered January 4, 2010, convicting him of criminal sale of a controlled substance in thethird degree and criminal possession of a controlled substance in the third degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the record reveals that the prosecutor sought, and theSupreme Court made, a pretrial Molineux ruling (see People v Molineux, 168NY 264 [1901]). The defendant's contention that the court erred in admitting evidence ofuncharged crimes and in failing to give a limiting instruction to the jury regarding use of thisevidence is unpreserved for appellate review since the defendant neither raised the argumentsasserted on appeal, requested that the court give such an instruction to the jury, nor objected tothe charge as given (see CPL 470.05 [2]; People v Williams, 50 NY2d 996, 998[1980]). In any event, the defendant's contention is without merit.
The defendant's contention that the prosecutor untimely disclosed the criminal records of oneof the People's witnesses (see CPL 240.45 [1] [b]) also is unpreserved for appellatereview (see CPL 470.05 [2]). In any event, since the defendant was made aware of thewitness's criminal history and used it for impeachment purposes, he was not prejudiced by thelate disclosure (see People v Osborne, 91 NY2d 827, 828 [1997]; People vCortijo, 70 NY2d 868, 870 [1987]; People v Olibencia, 45 AD3d 607, 608 [2007]; People vBaines, 270 AD2d 281 [2000]; People v Lane, 221 AD2d 371 [1995]).
The Supreme Court did not improvidently exercise its discretion in granting the People'srequest to close the courtroom during the testimony of one of the witnesses. At a hearing on theissue, the witness, two detectives, and a court officer testified that several people had threatenedthe witness while he was walking into the courtroom that morning and while he was on the standearlier that day, and the witness testified that he feared for his safety. Accordingly, the [*2]court had before it sufficient facts to justify the closure of thecourtroom (see Waller v Georgia, 467 US 39, 48 [1984]; People v Frost, 100NY2d 129, 137 [2003]; People v Graham, 200 AD2d 686, 687 [1994]; People vMack, 178 AD2d 661, 662 [1991]; United States ex rel. Bruno v Herold, 408 F2d125 [1969], cert denied 397 US 957 [1970]; United States ex rel. Orlando v Fay,350 F2d 967 [1965], cert denied sub nom. Orlando v Follette, 384 US 1008 [1966]).
The defendant's contentions that the prosecutor's summation remarks constituted reversibleerror because he vouched for the credibility of one of the People's witnesses and made remarksthat were denigrating to the defense are unpreserved for appellate review because he failed toobject to any of the comments (see CPL 470.05 [2]; People v Tonge, 93 NY2d838, 840 [1999]; People v Dien, 77 NY2d 885, 886 [1991]; People v Balls, 69NY2d 641, 641 [1986]). In any event, the comments alleged to be prejudicial either wereresponsive to arguments and theories presented in the defense summation (see People vHalm, 81 NY2d 819, 821 [1993]; People v McCoy, 89 AD3d 1110 [2011]; People v Carey, 67 AD3d 925[2009]; People v Williams, 52AD3d 851 [2008]; People vDominique, 36 AD3d 624, 626 [2007]; People v Holguin, 284 AD2d 343[2001]), or constituted harmless error (see People v Crimmins, 36 NY2d 230, 241-242[1975]).
The defendant was not deprived of the effective assistance of counsel, as the record revealsthat defense counsel provided meaningful representation (see People v Benevento, 91NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]).
Contrary to the defendant's contention, the Supreme Court did not impermissibly punish himfor exercising his right to proceed to trial (see People v Melendez, 71 AD3d 1166, 1167 [2010]). Thedefendant was convicted of criminal possession of a controlled substance in the third degree, aclass B felony (see Penal Law § 220.16 [1]) and criminal sale of a controlledsubstance in the third degree, also a class B felony (see Penal Law § 220.39 [1]).Since he was a second felony drug offender (see Penal Law § 70.06 [1]; §70.70 [1] [b]), whose previous conviction for burglary in the second degree was a violent felony(see Penal Law § 70.02 [1] [b]; § 140.25), the Supreme Court was requiredto impose a determinate sentence of 6 to 15 years of imprisonment for each conviction (seePenal Law § 70.70 [4] [b] [i]). In imposing a determinate term of 10 years ofimprisonment on each count, which fell in the middle of the sentencing range, the court carefullyconsidered, inter alia, the defendant's criminal history, as well as the safety of the community.
The defendant's remaining contention is without merit. Dillon, J.P., Leventhal, Hall andAustin, JJ., concur.