People v. Gonzalez

• Decision Date: 08 July 1991
• Citation: 175 A.D.2d 179,572 N.Y.S.2d 66
• Parties: The PEOPLE, etc., Respondent, v. Juan GONZALEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 66

572 N.Y.S.2d 66

175 A.D.2d 179

The PEOPLE, etc., Respondent, v. Juan GONZALEZ, Appellant.

Supreme Court, Appellate Division,

Second Department.

July 8, 1991.

Wayne P. Jordan, New Hyde Park, for appellant.

Denis Dillon, Dist. Atty., Mineola (Bruce E. Whitney and Lawrence J. Schwarz, of counsel), for respondent.

Before MANGANO, P.J., and LAWRENCE, EIBER and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Nassau County (Delin, J.), rendered October 25, 1985, convicting him of criminal sale of a controlled substance in the first degree, criminal possession of a controlled substance in the first degree, criminal possession of controlled substance in the third degree, and conspiracy in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, under the circumstances of this case the trial court properly allowed the introduction of evidence of other uncharged drug sales in order to establish the defendant's intent and predisposition to commit the crime so as to refute the agency and entrapment defenses raised by the defendant (see, People v. Calvano, 30 N.Y.2d 199, 205-206, 331 N.Y.S.2d 430, 282 N.E.2d 322; People v. Crandall, 67 N.Y.2d 111, 118, 500 N.Y.S.2d 635, 491 N.E.2d 1092; People v. Allweiss, 48 N.Y.2d 40, 47, 421 N.Y.S.2d 341, 396 N.E.2d 735; People v. Mann, 31 N.Y.2d 253, 260-261, 336 N.Y.S.2d 633, 288 N.E.2d 595). Moreover, the court properly charged the jury as to the limited use of the evidence of uncharged crimes.

In addition, evidence of overt acts not specifically listed in the indictment was properly admitted to establish the defendant's guilt of the crime of conspiracy in the second degree (see, e.g., People v. Bongarzone, 116 A.D.2d 164, 171, 500 N.Y.S.2d 532, aff'd 69 N.Y.2d 892, 515 N.Y.S.2d 227, 507 N.E.2d 1083). We note in particular that those overt acts fell within the time period specified in the indictment and that at no time did the defendant request a bill of particulars (see, People v. MacKey, 49 N.Y.2d 274, 278, 425 N.Y.S.2d 288, 401 N.E.2d 398; People v. Fitzgerald, 45 N.Y.2d 574, 578-579, 412 N.Y.S.2d 102, 384 N.E.2d 649; People v. Iannone, 45 N.Y.2d 589, 596-601, 412 N.Y.S.2d 110, 384 N.E.2d 656; People v. Bongarzone, supra; People v. LaKomec, 86 A.D.2d 77, 79, 449 N.Y.S.2d 71).

With regard to the rebuttal evidence establishing the defendant's involvement in other drug sales and that drug paraphernalia was found in the defendant's apartment, we observe initially that the defendant's claim has not been preserved for appellate review (see, CPL 470.05[2]; People v. Udzinski, 146 A.D.2d 245, 248-252, 541 N.Y.S.2d 9). In any event, the evidence was properly admitted to rebut the defendant's affirmative claims that he knew nothing about drugs, that he never sold drugs, and that the evidence against him was fabricated (see, People v. Alvino, 71 N.Y.2d 233, 245-248, 525 N.Y.S.2d 7, 519 N.E.2d 808; People v. Harris, 57 N.Y.2d 335, 345, 456 N.Y.S.2d 694, 442 N.E.2d 1205, cert. denied 460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 803; People v. Roccaforte, 141 A.D.2d 775, 776, 529 N.Y.S.2d 865; see also, People v. Gonzalez, 161 A.D.2d 798, 556 N.Y.S.2d 370).

Finally, we reject the defendant's contention that the court erred in granting his request to proceed pro se when he took the witness stand. When the defendant asked to proceed pro se, the court conducted an extensive inquiry and advised the defendant of his right to do so, but warned him forcefully that he lacked legal training and would be at a disadvantage. In addition, the court insured that...