| People v Valentin |
| 2015 NY Slip Op 07553 [132 AD3d 499] |
| October 15, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jose Valentin, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Alejandro B.Fernandez of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), forrespondent.
Judgment, Supreme Court, New York County (Laura Ward, J., at hearings; Arlene D.Goldberg, J., at jury trial and sentencing), rendered February 28, 2013, as amendedMarch 4, 2013, convicting defendant of criminal sale of a controlled substance in thethird degree, and sentencing him, as a second felony drug offender, to a term of fouryears, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibilitydeterminations. The evidence supports the conclusion that defendant sold drugs to anapprehended buyer.
Those portions of the prosecutor's summation to which defendant objectedconstituted reasonable inferences drawn from the evidence, and were responsive todefendant's summation. Defendant's remaining challenges to the summation areunpreserved and we decline to review them in the interest of justice. As an alternativeholding, we find no basis for reversal (see People v Overlee, 236 AD2d 133 [1stDept 1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184AD2d 114, 118-119 [1st Dept 1992], lv denied 81 NY2d 884 [1993]). We haveconsidered and rejected defendant's claim that his counsel rendered ineffective assistanceby failing to make additional objections to the summation (see People v Cass, 18 NY3d553, 564 [2012]).
Upon granting the defense request for an agency defense based upon aspects of thePeople's evidence, the court properly allowed the People to introduce evidence ofdefendant's prior drug sale conviction (see People v Small, 12 NY3d 732, 733 [2009]). Defendantclearly asserted an agency defense. Contrary to defendant's argument, we see no reasonto draw a distinction between the situation where a defendant testifies or otherwise elicitsevidence to support an agency defense, and the situation where, as here, the defendantessentially adopts those portions of the evidence elicited by the People that support sucha defense; in each instance, the People have the right of rebuttal.
The hearing court properly exercised its discretion in reopening the suppressionhearing to allow the People to present an additional witness (see e.g. People v Cestalano, 40AD3d 238 [1st Dept 2007], lv denied 9 NY3d 921 [2007]). Defendant didnot preserve his claim that the court had already rendered a decision on the merits andtherefore lacked any discretion to reopen the hearing, and we decline to review it in theinterest of justice. As an alternative holding, we reject this claim because the courtexpressly stated that it had not yet rendered a decision.
[*2] Defendant's remaining suppression argument isunpreserved and we decline to review it in the interest of justice. As an alternativeholding, we reject it on the merits. Concur—Friedman, J.P., Sweeny, Saxe,Moskowitz and Gische, JJ.