People v. Del Valle

• Decision Date: 22 December 1995
• Citation: 222 A.D.2d 1095,635 N.Y.S.2d 848
• Parties: PEOPLE of The State of New York, Respondent, v. Esteban DEL VALLE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 848

635 N.Y.S.2d 848

222 A.D.2d 1095

PEOPLE of The State of New York, Respondent, v. Esteban DEL VALLE, Appellant.

Supreme Court, Appellate Division Fourth Department.

Dec. 22, 1995.

Gerald T. Barth, Syracuse, for appellant.

William J. Fitzpatrick by James Maxwell, Syracuse, for respondent.

Before LAWTON, J.P., and WESLEY, BALIO, DAVIS and BOEHM, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the fourth degree. Defendant's contention that County Court improperly closed the courtroom during the Wade hearing while the undercover officer testified is not preserved for our review (see, People v. Pollock, 50 N.Y.2d 547, 550, 429 N.Y.S.2d 628, 407 N.E.2d 472; People v. Brown [Andre], 216 A.D.2d 100, 627 N.Y.S.2d 925; People v. Portilla, 190 A.D.2d 827, 828, 593 N.Y.S.2d 831, lv. denied 82 N.Y.2d 852, 606 N.Y.S.2d 604, 627 N.E.2d 526), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).

Defendant did not meet his "high burden of demonstrating that he was deprived of a fair trial by less than meaningful representation" (People v. Hobot, 84 N.Y.2d 1021, 1022, 622 N.Y.S.2d 675, 646 N.E.2d 1102), and cannot prevail on his claim that he was denied effective assistance of trial counsel. Further, the court did not err in denying defendant's request for an instruction on the defense of entrapment with respect to criminal possession of a controlled substance in the fourth degree. There is no reasonable view of the evidence to support the conclusion that defendant was "induced or encouraged" by official activity and had no predisposition to engage in such conduct (Penal Law § 40.05; see, People v. Redden, 181 A.D.2d 1016, 581 N.Y.S.2d 507, lv. denied 79 N.Y.2d 1053, 584 N.Y.S.2d 1020, 596 N.E.2d 418; People v. Colon, 175 A.D.2d 637, 573 N.Y.S.2d 943, lv. denied 78 N.Y.2d 1010, 575 N.Y.S.2d 818, 581 N.E.2d 1064).

The imposition of both a surcharge and restitution was not improper in this case (see, People v. Burks, 195 A.D.2d 1014, 1015, 600 N.Y.S.2d 578, lv. denied 82 N.Y.2d 804, 604 N.Y.S.2d 940, 624 N.E.2d 1035; People v. DeBerry, 117 A.D.2d 1006, 499 N.Y.S.2d 549). The sentence imposed is not unduly harsh or severe. We have reviewed the remaining contentions advanced by def...