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People v. Sivels

Supreme Court of New York, Second Department

February 5, 2014

The People of the State of New York, respondent,
v.
Milton Sivels, also known as Milton Silvels, appellant. Ind. No. 2141-08

Richard L. Herzfeld, P.C., New York, N.Y., for appellant, and appellant pro se.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas Constant of counsel), for respondent.

PETER B. SKELOS, J.P., PLUMMER E. LOTT, JEFFREY A. COHEN, SYLVIA O. HINDS-RADIX, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Efman, J.), rendered April 17, 2009, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, he was not deprived of a fair trial by the prosecutor's cross-examination of him. The cross-examination did not constitute badgering (cf. People v Bhupsingh, 297 A.D.2d 386, 387-388), nor did the prosecutor declare her personal disbelief in and disapproval of the defendant's answers (cf. People v Demko, 71 A.D.2d 608; People v Sharp, 71 A.D.2d 1034). The prosecutor's vigorous cross-examination of the defendant was probative with respect to the crimes charged and the defendant's veracity.

The defendant failed to preserve for appellate review his contentions that part of the testimony offered by Detective Demato constituted expert testimony, in violation of the court's ruling that he was to testify only as a fact witness, or that his testimony constituted an impermissible lay opinion (see CPL 470.05[2]). In any event, any error in admitting the testimony was harmless, as there was overwhelming evidence of the defendant's guilt on the charges and no significant probability that the error contributed to his convictions (see People v Johnson, 57 N.Y.2d 969, 971; People v Crimmins, 36 N.Y.2d 230; People v Ukasoanya, 101 A.D.3d 911).

Contrary to the defendant's contention raised in his pro se supplemental brief, the County Court properly permitted the prosecutor to elicit testimony about the defendant's prior criminal drug sale convictions. Although, as the defendant contends, cross-examination about his criminal narcotics sale convictions was not permitted under the court's pretrial Sandoval ruling (see People v Sandoval, 34 N.Y.2d 371), the court properly ruled, pursuant to People v Molineux (168 NY 264), that the prosecutor could elicit that testimony to rebut the defendant's agency defense (see People v Blue, 107 A.D.3d 443; People v Massey, 49 A.D.3d 462; People v Randall, 177 A.D.2d 661; People v Castaneda, 173 A.D.2d 349; People v Rosario, 122 A.D.2d 85).

The defendant's further contention, raised in his pro se supplemental brief, that his attorney failed to provide effective assistance of counsel by not affording him the right to testify before the grand jury is based upon matter dehors the record and, thus, cannot be reviewed on direct appeal (see People v Rohlehr, 87 A.D.3d 603, 604; People v Miller, 68 A.D.3d 1135, 1135). "The appropriate vehicle... to allege ineffective assistance of counsel grounded in allegations referring to facts outside of the... record is pursuant to CPL 440.10, where matters dehors the record may be considered" (People v Rohlehr, 87 A.D.3d at 604 [internal quotation marks omitted]).

SKELOS, J.P., LOTT, COHEN and HINDS-RADIX, JJ., concur.


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