People v. Edwards

May 10, 2001
Versions:283 A.D.2d 219
728 N.Y.S.2d 364
2001 N.Y. App. Div. LEXIS 4793

—Judgment, Supreme Court, New York County (Harold Beeler, J., on CPL 190.50 [5] [c] motion; Leslie Crocker Snyder, J., at jury trial and sentence), rendered April 13, 1999, convicting defendant of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years and 1 year, respectively, unanimously affirmed.

The court properly denied defendant’s motion to dismiss the indictment since defendant was afforded a reasonable and meaningful opportunity to testify before the Grand Jury. The record establishes that defendánt’s failure to testify resulted from the inadequacy of defense counsel’s communications with the prosecution concerning the scheduling of defendant’s Grand Jury appearance (see, People v Pearson, 269 AD2d 205, lv denied 95 NY2d 801; People v Cates, 238 AD2d 140, lv denied 89 NY2d 1090; People v Ferrara, 99 AD2d 257, 261).

Defendant’s claim that he was deprived of a fair trial by the court’s conduct is not preserved for appellate review (see, People v Charleston, 56 NY2d 886), and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court’s participation served to clarify the testimony (People v Moulton, 43 NY2d 944). To the extent that the court admonished defense counsel in the presence of the jury, the court later corrected itself and instructed the jury not to construe its remarks as indicating that it had an opinion on the case.

The court properly closed the courtroom during the testimony of the undercover officer. The People sufficiently showed closure was warranted since the officer had ongoing undercover operations in the area of the instant arrest and had been threatened by drug dealers in the past (see, People v Ayala, 90 NY2d 490, cert denied 522 US 1002).

We perceive no basis for reduction of sentence. Concur— Sullivan, P. J., Rosenberger, Tom, Andrias and Marlow, JJ.