Opinion
2015-03-19
The PEOPLE of the State of New York Respondent, v. Allen DEWITT, etc., Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Rosemary Herbert of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (T. Charles Won of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Rosemary Herbert of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (T. Charles Won of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Doris M. Gonzalez, J.), rendered November 15, 2011, as amended December 20, 2011, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a term of six years, 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 got out of jail.” The court gave curative instructions that were sufficient to prevent any prejudice ( see People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668 [1981] ), and that the jury is presumed to have followed ( see People v. Davis, 58 N.Y.2d 1102, 1104, 462 N.Y.S.2d 816, 449 N.E.2d 710 [1983] )
The court properly exercised its discretion in declining to order a competency examination of defendant pursuant to CPL Article 730 ( see Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 [1966]; People v. Tortorici, 92 N.Y.2d 757, 686 N.Y.S.2d 346, 709 N.E.2d 87 [1999], cert. denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80 [1999]; People v. Morgan, 87 N.Y.2d 878, 638 N.Y.S.2d 942, 662 N.E.2d 260 [1995] ). When the court learned that defendant may have had a psychiatric history, it conducted a sufficient inquiry of defendant and his counsel, and correctly determined that no examination was necessary. Neither defendant's trial testimony, nor anything else in the record, casts doubt on defendant's ability to understand the proceedings or assist in his defense.
The People's demonstration at the Hinton hearing (People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265 [1972] ) of an overriding interest in courtroom closure also satisfied the People's burden under People v. Waver, 3 N.Y.3d 748, 788 N.Y.S.2d 630, 821 N.E.2d 934 (2004) of establishing the need for the undercover officer to testify anonymously ( see e.g. People v. Ortiz, 74 A.D.3d 672, 903 N.Y.S.2d 399 [1st Dept.2010], lv. denied15 N.Y.3d 894, 912 N.Y.S.2d 582, 938 N.E.2d 1017 [2010] ). We have considered and rejected defendant's arguments to the contrary. MAZZARELLI, J.P., DeGRASSE, RICHTER, FEINMAN, JJ., concur.