PEOPLE v. ORTIZ

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Lyndon ORTIZ, Defendant-Appellant.

Decided: April 26, 2007

TOM, J.P., ANDRIAS, BUCKLEY, GONZALEZ, MALONE, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Risa Gerson of counsel), and Cooley Godward Kronish LLP, New York (Tejal Shah of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Dana Poole of counsel), for respondent.

Judgment, Supreme Court, New York County (Arlene R. Silverman, J.), rendered July 14, 2004, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 1/212 to 9 years, unanimously affirmed.

 The court, which accorded defendant ample opportunity to develop his claim that police witnesses mistook him for his brother, properly exercised its discretion when it precluded defendant from introducing photographs that were potentially misleading with respect to the alleged resemblance between the brothers (see People v. Davis, 43 N.Y.2d 17, 27, 400 N.Y.S.2d 735, 371 N.E.2d 456 [1977], cert. denied 435 U.S. 998, 98 S.Ct. 1653, 56 L.Ed.2d 88 [1978];  People v. Johnson, 236 A.D.2d 263, 653 N.Y.S.2d 579 [1997], lv. denied 89 N.Y.2d 1095, 660 N.Y.S.2d 389, 682 N.E.2d 990 [1997];  People v. Hernandez, 227 A.D.2d 162, 642 N.Y.S.2d 634 [1996] ).   Since defendant never asserted any constitutional right to introduce this evidence, his constitutional claim is unpreserved (see e.g. People v. Angelo, 88 N.Y.2d 217, 222, 644 N.Y.S.2d 460, 666 N.E.2d 1333 [1996] ), and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the court did not violate defendant's right to present a defense (see Crane v. Kentucky, 476 U.S. 683, 689-690, 106 S.Ct. 2142, 90 L.Ed.2d 636 [1986] ).   We note that defendant was able to establish his resemblance to his brother through other means, including police testimony and reports.

 The People made a sufficiently particularized showing to warrant courtroom closure during the undercover officer's testimony, in that the officer continued to work in the area of defendant's arrest, had unapprehended suspects remaining at large from the area of defendant's arrest and took precautions when testifying (see e.g. People v. Reed, 4 A.D.3d 120, 771 N.Y.S.2d 340 [2004], lv. denied 2 N.Y.3d 805, 781 N.Y.S.2d 304, 814 N.E.2d 476 [2004] ).   Defendant's arguments concerning possible alternatives to closure, and his challenge to the officer's identification of himself only by shield number, are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.

Nothing in the prosecutor's statements shifted the burden of proof or deprived defendant of a fair trial.   Since the defense was not based entirely on allegations of honest mistake, but also included attacks on police credibility, the prosecutor was entitled to respond (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ).   Even if some of the challenged remarks would have been better left unsaid, these isolated comments were not part of a pattern of misconduct and do not warrant reversal (see People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).

Defendant's arguments for a reduced penalty under the Drug Law Reform Act (L. 2004, ch. 738) are without merit (People v. Utsey, 7 N.Y.3d 398, 822 N.Y.S.2d 475, 855 N.E.2d 791 [2006] ).

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