| People v Dewitt |
| 2015 NY Slip Op 02215 [126 AD3d 579] |
| March 19, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Allen Dewitt, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (RosemaryHerbert of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (T. Charles Won of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Doris M. Gonzalez, J.), renderedNovember 15, 2011, as amended December 20, 2011, convicting defendant, after a jurytrial, of criminal sale of a controlled substance in the third degree, and sentencing him, asa second felony drug offender previously convicted of a violent felony, to a term of sixyears, unanimously affirmed.
The court properly exercised its discretion in denying defendant's mistrial motion,made after an undercover officer testified that defendant told him that "he had just gotout of jail." The court gave curative instructions that were sufficient to prevent anyprejudice (see People v Santiago, 52 NY2d 865 [1981]), and that the jury ispresumed to have followed (see People v Davis, 58 NY2d 1102, 1104[1983]).
The court properly exercised its discretion in declining to order a competencyexamination of defendant pursuant to CPL article 730 (see Pate v Robinson, 383US 375 [1966]; People v Tortorici, 92 NY2d 757 [1999], cert denied 528US 834 [1999]; People v Morgan, 87 NY2d 878 [1995]). When the court learnedthat defendant may have had a psychiatric history, it conducted a sufficient inquiry ofdefendant and his counsel, and correctly determined that no examination was necessary.Neither defendant's trial testimony, nor anything else in the record, casts doubt ondefendant's ability to understand the proceedings or assist in his defense.
The People's demonstration at the Hinton hearing (People v Hinton,31 NY2d 71 [1972]) of an overriding interest in courtroom closure also satisfied thePeople's burden under People vWaver (3 NY3d 748 [2004]) of establishing the need for the undercover officerto testify anonymously (see e.g. People v Ortiz, 74 AD3d 672 [1st Dept 2010], lvdenied 15 NY3d 894 [2010]). We have considered and rejected defendant'sarguments to the contrary. Concur—Mazzarelli, J.P., DeGrasse, Richter andFeinman, JJ.