| People v Rahman |
| 2014 NY Slip Op 05356 [119 AD3d 820] |
| July 16, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Rashid Rahman, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Nao Terai of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andAdam M. Koelsch of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J.Goldberg, J.), rendered August 15, 2012, convicting him of criminal sale of a controlledsubstance in the third degree (two counts), upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's contention that the Supreme Court excused potential jurors basedupon hardship without conducting a sufficient inquiry is unpreserved for appellatereview (see People v Harris,115 AD3d 761, 762 [2014]; People v Umana, 76 AD3d 1111, 1112 [2010]; People v Gonzalez, 68 AD3d627 [2009]; People vCasanova, 62 AD3d 88, 92 [2009]; People v Toussaint, 40 AD3d 1017, 1017-1018 [2007])and, in any event, without merit (see People v Umana, 76 AD3d at 1112;People v Toussaint, 40 AD3d at 1017-1018).
The defendant contends that the Supreme Court erred in admitting into evidence thetestimony of an undercover officer that he was told by an individual who was not calledas a witness that he could buy drugs from the defendant, and that the individual also toldhim to give her money so she could buy drugs from the defendant. However, thecontention is without merit since, as the court instructed the jury, the testimony was notoffered for its truth, but rather, to explain the undercover officer's conduct leading to thedefendant's arrest (see People v Tosca, 98 NY2d 660, 661 [2002]; People v Chandler, 59 AD3d562 [2009]; People vReynolds, 46 AD3d 845 [2007]; People v Monroe, 216 AD2d 494[1995]). The defendant's contention that the testimony of the undercover officer violatedhis state and federal constitutional rights to confrontation is unpreserved for appellatereview (see People vHowell, 44 AD3d 686, 687 [2007]). In any event, the testimony did not violatethe defendant's right to confrontation, as the conversation it recounted was nottestimonial in nature and the testimony was not elicited for the truth of the matterasserted (see Crawford v Washington, 541 US 36, 51-52 [2004]; People v Rawlins, 10 NY3d136, 146-147 [2008]; People v Reynoso, 2 NY3d 820, 821 [2004]; People v Basagoitia, 55 AD3d619, 620 [2008]).
The defendant's contentions that the prosecutor improperly vouched for the policewitnesses and referred to facts not in evidence during her summation are unpreserved forappellate review, as he either failed to object to the remarks he now challenges or madeonly general [*2]objections (see CPL 470.05 [2];see People v Jorgensen, 113AD3d 793, 794 [2014]). In any event, the challenged comments constituted eitherfair comment on the evidence or fair response to the defense summation (see People vGalloway, 54 NY2d 396, 399 [1981]; People v Ashwal, 39 NY2d 105,109-110 [1976]). The failure of the defendant's attorney to object to certain portions ofthe prosecutor's summation did not constitute ineffective assistance of counsel, becausecounsel need not make an argument that has little or no chance of success (see People v Stultz, 2 NY3d277, 287 [2004]; People vJames, 72 AD3d 844, 845 [2010]). The defendant was afforded meaningfulrepresentation (see People v Benevento, 91 NY2d 708, 712 [1998]; People vBaldi, 54 NY2d 137, 147 [1981]). Mastro, J.P., Chambers, Lott and Roman, JJ.,concur.