People v. Maldonado

• Decision Date: 03 October 1995
• Citation: 631 N.Y.S.2d 850,220 A.D.2d 212
• Parties: The PEOPLE of the State of New York, Respondent, v. Jose MALDONADO, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 850

631 N.Y.S.2d 850

220 A.D.2d 212

The PEOPLE of the State of New York, Respondent, v. Jose MALDONADO, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Oct. 3, 1995.

C.R. Smith, for Respondent.

A.R. Feldman, for Defendant-Appellant.

Before SULLIVAN, J.P. and ELLERIN, RUBIN, KUPFERMAN and ASCH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Murray Mogel, J.), rendered July 1, 1993, convicting defendant, after jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4 1/2 to 9 years, unanimously affirmed.

Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference, defendant's guilt of each and every element of the crimes charged was proven beyond a reasonable doubt (People v. Malizia, 62 N.Y.2d 755, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert. denied 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264), and an independent review of the record indicates that the jury accorded appropriate weight to the credible evidence (People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Defendant did not preserve by objection his current hearsay and relevancy claims regarding admission of testimony describing the mechanics of a typical "observation post" operation (People v. Diaz, 170 A.D.2d 395, 566 N.Y.S.2d 283, lv. denied 78 N.Y.2d 954, 573 N.Y.S.2d 650, 578 N.E.2d 448). Were we to review them in the interest of justice, we would find no error, as limited background testimony was properly admitted to assist the jury in understanding the events leading to defendant's arrest and was probative of the officers' reliability, which was a contested issue (see, People v. Almodovar, 178 A.D.2d 133, 576 N.Y.S.2d 566, lv. denied 79 N.Y.2d 943, 583 N.Y.S.2d 197, 592 N.E.2d 805).

Contrary to defendant's claim, the trial court did give consideration to the possible prejudicial effect of evidence of uncharged crimes (see, People v. Ventimiglia, 52 N.Y.2d 350, 362, 438 N.Y.S.2d 261, 420 N.E.2d 59). In the circumstances herein, and in light of the defense of innocent presence at the scene, the court did not improvidently exercise its discretion in permitting some police testimony regarding observed activities of defendant prior to and after the charged drug sales, as relevant to the issues of intent and acting in concert (see, People v. Carter, 77 N.Y.2d 95, 107, 564 N.Y.S.2d 992, 566 N.E.2d 119, cert. denied 499 U.S. 967, 111 S.Ct. 1599, 113 L.Ed.2d 662). Further, defendant made no request for limiting instructions regarding that testimony and thus failed to preserve his current claim of error (CPL 470.05).

Defendant did not preserve by objection his current claim that certain comments made by the prosecutor in summation deprived him of a fair trial (CPL 470.05). Were we to review it in the interest of justice, we would find no basis for reversal. Although the prosecutor inartfully phrased one argument concerning credibility by including a reference to "tailored facts", it is clear that the intent was to argue merely that defendant's narrative of the events in question was incomplete. In view of the overwhelming nature of the evidence against defendant, error, if any, was harmless (People v. Lewis, 177 A.D.2d 421, 576 N.Y.S.2d 262, lv. denied 79 N.Y.2d 949, 583 N.Y.S.2d 203, 592 N.E.2d 811).

Defendant's claim that the trial court's "two inference" charge to the jury diluted the People's burden of proof is unpreserved by appropriate and timely objection (People v. Nunez, 203 A.D.2d 190, 191, 616 N.Y.S.2d 938, lv. denied 83 N.Y.2d 970, 616 N.Y.S.2d 22, 639 N.E.2d 762). As defendant concedes, the court's jury charge on reasonable doubt was "technically correct", and having failed to...