Opinion
2014-07-16
The PEOPLE, etc., respondent, v. Rashid RAHMAN, appellant.
Lynn W.L. Fahey, New York, N.Y. (Nao Terai of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Adam M. Koelsch of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Nao Terai of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Adam M. Koelsch of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg, J.), rendered August 15, 2012, convicting him of criminal sale of a controlled substance in the third degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the Supreme Court excused potential jurors based upon hardship without conducting a sufficient inquiry is unpreserved for appellate review ( see People v. Harris, 115 A.D.3d 761, 762, 981 N.Y.S.2d 451;People v. Umana, 76 A.D.3d 1111, 1112, 908 N.Y.S.2d 244;People v. Gonzalez, 68 A.D.3d 627, 890 N.Y.S.2d 323;People v. Casanova, 62 A.D.3d 88, 92, 875 N.Y.S.2d 31;People v. Toussaint, 40 A.D.3d 1017, 1017–1018, 837 N.Y.S.2d 218) and, in any event, without merit ( see People v. Umana, 76 A.D.3d at 1112, 908 N.Y.S.2d 244;People v. Toussaint, 40 A.D.3d at 1017–1018, 837 N.Y.S.2d 218).
The defendant contends that the Supreme Court erred in admitting into evidence the testimony of an undercover officer that he was told by an individual who was not called as a witness that he could buy drugs from the defendant, and that the individual also told him to give her money so she could buy drugs from the defendant. However, the contention is without merit since, as the court instructed the jury, the testimony was not offered for its truth, but rather, to explain the undercover officer's conduct leading to the defendant's arrest ( see People v. Tosca, 98 N.Y.2d 660, 661, 746 N.Y.S.2d 276, 773 N.E.2d 1014;People v. Chandler, 59 A.D.3d 562, 872 N.Y.S.2d 283;People v. Reynolds, 46 A.D.3d 845, 848 N.Y.S.2d 278;People v. Monroe, 216 A.D.2d 494, 628 N.Y.S.2d 398). The defendant's contention that the testimony of the undercover officer violated his state and federal constitutional rights to confrontation is unpreserved for appellate review ( see People v. Howell, 44 A.D.3d 686, 687, 843 N.Y.S.2d 169). In any event, the testimony did not violate the defendant's right to confrontation, as the conversation it recounted was not testimonial in nature and the testimony was not elicited for the truth of the matter asserted ( see Crawford v. Washington, 541 U.S. 36, 51–52, 124 S.Ct. 1354, 158 L.Ed.2d 177;People v. Rawlins, 10 N.Y.3d 136, 146–147, 855 N.Y.S.2d 20, 884 N.E.2d 1019;People v. Reynoso, 2 N.Y.3d 820, 821, 781 N.Y.S.2d 284, 814 N.E.2d 456;People v. Basagoitia, 55 A.D.3d 619, 620, 865 N.Y.S.2d 313).
The defendant's contentions that the prosecutor improperly vouched for the police witnesses and referred to facts not in evidence during her summation are unpreserved for appellate review, as he either failed to object to the remarks he now challenges or made only general objections ( seeCPL 470.05[2]; see People v. Jorgensen, 113 A.D.3d 793, 794, 978 N.Y.S.2d 361). In any event, the challenged comments constituted either fair comment on the evidence or fair response to the defense summation ( see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885;People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564). The failure of the defendant's attorney to object to certain portions of the prosecutor's summation did not constitute ineffective assistance of counsel, because counsel need not make an argument that has little or no chance of success ( see People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883;People v. James, 72 A.D.3d 844, 845, 898 N.Y.S.2d 635). The defendant was afforded meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). MASTRO, J.P., CHAMBERS, LOTT and ROMAN, JJ., concur.