Opinion
12-22-2016
The PEOPLE of the State of New York, Respondent, v. Luis GONZALEZ, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Matthew A. Wasserman of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Matthew A. Wasserman of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), for respondent.
FRIEDMAN, J.P., MOSKOWITZ, WEBBER, KAHN, GESMER, JJ.
Judgment, Supreme Court, New York County (Melissa C. Jackson, J.), rendered November 12, 2013, 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 with three years' postrelease supervision, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the period of postrelease supervision to 1 ½ years, and otherwise affirmed.
The verdict rejecting defendant's agency defense was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Among other things, defendant led the undercover officer to an accomplice, whom he knew was working in the area at the time, touted the quality of the heroin, accompanied the officer and accomplice to a building where defendant stood as a lookout during the sale, and remained with the accomplice after the sale. Thus, it is a reasonable inference that defendant acted as a steerer whose duties included escorting customers to the place of the sale, and there was no evidence suggesting that he was doing a risky "favor" for a total stranger (see People v. Lam Lek Chong, 45 N.Y.2d 64, 74–75, 407 N.Y.S.2d 674, 379 N.E.2d 200 [1978], cert. denied 439 U.S. 935, 99 S.Ct. 330, 58 L.Ed.2d 331 [1978] ; see also People v. Vaughan, 300 A.D.2d 104, 750 N.Y.S.2d 846 [1st Dept.2002], lv. denied 99 N.Y.2d 633, 760 N.Y.S.2d 115, 790 N.E.2d 289 [2003] ).
Defendant's claim under People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991), which involves a jury note that the court read into the record in full before responding, is concededly unpreserved, and we decline to review it claim in the interest of justice. As an alternative holding, we find that although the court should have discussed the note with counsel on the record outside the jury's presence before responding, defendant was not prejudiced by the lack of full compliance with the O'Rama procedures. The court merely reread portions of the charge already provided to the jury, and counsel's input into any response could have only been minimal (People v. Snider, 49 A.D.3d 459, 460, 855 N.Y.S.2d 57 [1st Dept.2008], lv. denied 11 N.Y.3d 795, 866 N.Y.S.2d 621, 896 N.E.2d 107 [2008] ).
The evidence at a Hinton hearing established an overriding interest that warranted a limited closure of the courtroom (see Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 [1984] ). The undercover officer testified that, among other things, he was still working in the vicinity of defendant's arrest. Such testimony has consistently been held to demonstrate a substantial probability that the officer's undercover status and safety would be jeopardized by testifying in an open courtroom (see People v. Echevarria, 21 N.Y.3d 1, 12–14, 966 N.Y.S.2d 747, 989 N.E.2d 9 [2013], cert. denied sub nom. Johnson v. New York, ––– U.S. ––––, 134 S.Ct. 823, 187 L.Ed.2d 688 [2013] ; People v. Sykes, 135 A.D.3d 535, 22 N.Y.S.3d 844 [1st Dept.2016], lv. denied 27 N.Y.3d 969, 36 N.Y.S.3d 630, 56 N.E.3d 910 [2016] ; People v. Williams, 134 A.D.3d 639, 640, 23 N.Y.S.3d 36 [1st Dept.2015], lv. denied 27 N.Y.3d 970, 36 N.Y.S.3d 631, 56 N.E.3d 911 [2016] ). Furthermore, the record sufficiently demonstrates that the court fulfilled its obligation under Waller to consider reasonable alternatives, and, to the extent the court considered some alternatives and not others, it can be imferred that the court determined that no lesser alternative would suffice (see Echevarria, 21 N.Y.3d at 14–19, 966 N.Y.S.2d 747, 989 N.E.2d 9 ).
Defendant's constitutional challenge to his prison sentence, which is the minimum permitted by law because of his prior violent felony conviction, is unpreserved (see People v. Tufano, 105 A.D.3d 648, 649, 963 N.Y.S.2d 584 [1st Dept.2013], lv. denied 21 N.Y.3d 1011, 971 N.Y.S.2d 263, 993 N.E.2d 1286 [2013] ), and we decline to review it in the interest of justice. As an alternative holding, we find this claim unavailing (see People v. Thompson, 83 N.Y.2d 477, 480, 611 N.Y.S.2d 470, 633 N.E.2d 1074 [1994] ; People v. Broadie, 37 N.Y.2d 100, 114–15, 371 N.Y.S.2d 471, 332 N.E.2d 338 [1975], cert. denied 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287 [1975] ).
However, as the People concede, since the court stated that it was imposing the "minimum" period of postrelease supervision permitted by law, but actually imposed a greater period, we modify the sentence accordingly.