| People v Perez |
| 2014 NY Slip Op 05655 [120 AD3d 514] |
| August 6, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Juan Perez, Appellant. |
Neal D. Futerfas, White Plains, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Jennifer Spencer, Steven A.Bender, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Hubert, J.), rendered June 2, 2011, convicting him of criminal sale of a controlledsubstance in the third degree (two counts), criminal possession of a controlled substancein the third degree (two counts), and criminal possession of a controlled substance in theseventh degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the convictions ofcriminal possession of a controlled substance in the seventh degree (two counts), anddismissing those counts of the indictment; as so modified, the judgment is affirmed.
The County Court did not err in permitting the People to cross-examine thedefendant as to certain prior bad acts, some of which the court, after a pretrialSandoval/Ventimiglia hearing (see People v Sandoval, 34 NY2d 371[1974]; People v Ventimiglia, 52 NY2d 350 [1981]), had previously ruled wouldbe precluded, as the defendant opened the door to such testimony on direct examination(see People v Fardan, 82 NY2d 638, 646 [1993]). The defendant's furthercontention that he was prejudiced by the language employed by the County Court inadvising the jury that he would testify out of sequence is unpreserved for appellatereview, as defense counsel did not object at trial on the constitutional grounds raised now(see People v Ford, 69 NY2d 775, 776 [1987]). In any event, that contention iswithout merit.
The defendant's contention that the County Court erred in permitting repeatedtestimony by a police officer and detectives as to their knowledge of, and familiaritywith, him from prior occasions is unpreserved for appellate review (see CPL470.05 [2]) and, in any event, is without merit. The County Court limited the testimonyso that no references to the nature of the defendant's prior interactions with the lawenforcement officers were elicited. In any event, even if testimony as to prior interactionswith the defendant could have constituted evidence of uncharged crimes, such evidencewould properly have been admissible as highly probative of the defendant's identity inlight of his misidentification defense, and to provide necessary context for the officers'testimony regarding the circumstances of the investigation (see People v Jones, 101 AD3d1241, 1242 [2012]; Peoplev Torres, 19 AD3d 732, 734 [2005]).
[*2] Viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it waslegally sufficient to support the defendant's convictions of criminal sale of a controlledsubstance in the third degree (two counts), criminal possession of a controlled substancein the third degree (two counts), and criminal possession of a controlled substance in theseventh degree (two counts). Moreover, upon the exercise of our factual review power,we are satisfied that the verdict of guilt was not against the weight of the evidence(see CPL 470.15 [5]). However, as the People correctly concede, the defendant'sconvictions of two counts of criminal possession of a controlled substance in the seventhdegree must be vacated, and those counts of the indictment dismissed, as they areinclusory concurrent counts of criminal possession of a controlled substance in the thirddegree (see CPL 300.40 [3] [b]; People v Anderson, 91 AD3d 789, 790 [2012]; People v Bilal, 79 AD3d900, 902 [2010]).
"The right to effective assistance of counsel is guaranteed by the Federal and StateConstitutions" (People v Rivera, 71 NY2d 705, 708 [1988]; see US ConstSixth Amend; NY Const, art I, § 6; People v Fields, 109 AD3d 553, 554 [2013]). Here, thedefendant was not deprived of the effective assistance of counsel under the New YorkConstitution because, viewing defense counsel's performance in totality, counselprovided meaningful representation (see People v Benevento, 91 NY2d 708, 712[1998]; People v Baldi, 54 NY2d 137, 147 [1981]; People v Fields, 109AD3d at 554). Further, the defendant was not deprived of the effective assistance ofcounsel under the United States Constitution (see Strickland v Washington, 466US 668 [1984]).
The defendant's contention that the prosecutor made improper summation commentsis unpreserved for appellate review (see CPL 470.05 [2]; People v Gopaul, 112 AD3d966, 967 [2013]; People vThompson, 99 AD3d 819, 819 [2012]) and, in any event, is without merit, as theremarks constituted fair response to the defense summation (see People v Rich, 78 AD3d1200, 1201 [2010]; Peoplev Martinez, 58 AD3d 754, 755 [2009]).
The defendant's contention that he was deprived of a fair trial by the cumulativeeffect of the alleged errors is unpreserved for appellate review (see People v Diaz, 30 AD3d436, 437 [2006]) and, in any event, is without merit (see People v Sandoval, 100AD3d 1025, 1027 [2012]).
The defendant's remaining contentions are without merit. Dillon, J.P., Lott, Austinand Barros, JJ., concur.