People v. Bilal

• Citation: 912 N.Y.S.2d 678,79 A.D.3d 900
• Parties: The PEOPLE, etc., respondent, v. Shateek BILAL, appellant.
• Decision Date: 14 December 2010
• Court: New York Supreme Court Appellate Division

912 N.Y.S.2d 678

79 A.D.3d 900

The PEOPLE, etc., respondent,

v.Shateek BILAL, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 14, 2010.

John Brian Macreery, Katonah, N.Y., for appellant, and appellant, pro se.

Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff, Richard Longworth Hecht, Anthony J. Servino, and Lois Cullen Valerio of counsel), for respondent.

A. GAIL PRUDENTI, P.J., MARK C. DILLON, RUTH C. BALKIN, and CHERYL E. CHAMBERS, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (R. Bellantoni, J.), rendered August 20, 2007, convicting him of criminal sale of a controlled substance in or near school grounds (two counts), criminal sale of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the third degree(two counts), and criminal possession of a controlled substance in the seventh degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the convictions of criminal possession of a controlled substance in the seventh degree (two counts), vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.

The defendant's contention that his convictions were not supported by legally sufficient evidence is unpreserved for appellate review, as defense counsel's motion for dismissal lacked any specificity ( see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 491-492, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. 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]; People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

Contrary to the People's assertion, the defendant's contention regarding the admission of hearsay evidence was preserved for appellate review ( see CPL 470.05[2]; People v. Ayala, 142 A.D.2d 147, 156, 534 N.Y.S.2d 1005, affd 75 N.Y.2d 422, 554 N.Y.S.2d 412, 553 N.E.2d 960). However, it is without merit, as in each instance, the testimony that, at some point, the witness learned a transaction had been completed, was offered not as proof that there had been a transaction, but "to provide necessary background information to the jury" ( People v. Johnson, 40 A.D.3d 1011, 1012, 837 N.Y.S.2d 222; see People v. Tosca, 98 N.Y.2d 660, 661, 746 N.Y.S.2d 276, 773 N.E.2d 1014).

The defendant was not deprived of a fair trial by the Supreme Court's refusal to allow him to display his burns, tattoos, and gold teeth in support of his defense of mistaken identity, since his sister was permitted to testify regarding these features ( see People v. Mendez, 138 A.D.2d 637, 638, 526 N.Y.S.2d 220).

The defendant's challenge to certain remarks made by the prosecutor during her summation is not preserved for appellate review, as no objection was made at the time ( see CPL 470.05[2] ). In any event, the challenged remarks do not require reversal ( see People v. Mereness, 43 A.D.3d 473, 843 N.Y.S.2d 86; People v. Bradley, 38 A.D.3d 793, 794, 832 N.Y.S.2d 605).

The Supreme Court providently exercised its discretion in denying, without a hearing, the defendant's application, submitted as part of his CPL 330.30 motion, for a reconstruction hearing to determine retrospectively his mental competency during the trial. "A defendant is presumed competent and the court isunder no obligation to issue an order of examination unless it has reasonable ground ... to believe that the defendant was an incapacitated person" ( People v. Morgan, 87 N.Y.2d 878, 880, 638 N.Y.S.2d 942, 662 N.E.2d 260 [internal quotation marks and citations omitted] ). The presumption of competency "cannot be rebutted by a mere showing that the defendant has a history of mental illness" ( People v. Hansen, 269 A.D.2d 467, 467, 704 N.Y.S.2d 269; see People v. Tortorici, 92 N.Y.2d 757, 765, 686 N.Y.S.2d 346, 709 N.E.2d 87, cert. denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d...