PEOPLE v. RAY (2009)

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ) and criminal possession of a controlled substance in the third degree (§ 220.16 [1] ).   We reject the contention of defendant that he was unduly prejudiced by County Court's Molineux ruling.   Evidence of uncharged crimes may be admissible if it is relevant to establish some element of the crime under consideration or if it falls within one of the recognized exceptions to the general rule precluding such evidence, i.e., it is relevant to demonstrate motive, intent, absence of mistake or accident, a common scheme or plan, or the identity of defendant (see People v. Alvino, 71 N.Y.2d 233, 241-242, 525 N.Y.S.2d 7, 519 N.E.2d 808;  People v. Ventimiglia, 52 N.Y.2d 350, 359, 438 N.Y.S.2d 261, 420 N.E.2d 59;  People v. Molineux, 168 N.Y. 264, 293-94, 61 N.E. 286;   People v. Kocyla, 167 A.D.2d 938, 939, 562 N.Y.S.2d 294).   Here, testimony concerning defendant's prior uncharged drug transaction was properly admitted in evidence to demonstrate the mental state necessary for defendant's criminal possession of a controlled substance with the intent to sell (see People v. Laws, 27 A.D.3d 1116, 812 N.Y.S.2d 200, lv. denied 7 N.Y.3d 758, 763, 819 N.Y.S.2d 883, 888, 853 N.E.2d 254, 259).   In any event, the testimony was admissible “to complete the narrative of events leading up to the crime for which defendant [was] on trial” (People v. Mullings, 23 A.D.3d 756, 758, 803 N.Y.S.2d 784, lv. denied 6 N.Y.3d 756, 759, 810 N.Y.S.2d 424, 427, 843 N.E.2d 1164, 1167).   We reject the further contention of defendant that he was denied a fair trial based on prosecutorial misconduct inasmuch as the prosecutor's comments “fell within the latitude afforded to attorneys in advocating their cause” (People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281).   The contention of defendant that he was denied effective assistance of counsel involves matters outside the record and is thus properly raised by way of a motion pursuant to CPL article 440 (see generally People v. Barnes, 56 A.D.3d 1171, 867 N.Y.S.2d 607).

 Although we agree with defendant that the court erred in admitting his booking photographs in evidence, we conclude that the error is harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).   Defendant failed to preserve for our review his challenge to the court's ultimate Sandoval ruling (see People v. Robles, 38 A.D.3d 1294, 1295, 832 N.Y.S.2d 339, lv. denied 8 N.Y.3d 990, 838 N.Y.S.2d 493, 869 N.E.2d 669).   In any event, that challenge lacks merit inasmuch as the court did not abuse its discretion in allowing the prosecutor to question defendant with respect to the circumstances underlying defendant's prior convictions (see People v. Reid, 34 A.D.3d 1273, 1274, 825 N.Y.S.2d 619, lv. denied 8 N.Y.3d 884, 832 N.Y.S.2d 496, 864 N.E.2d 626).

Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Also contrary to defendant's contention, the evidence is legally sufficient to support the conviction (see generally id.).   The sentence is not unduly harsh or severe.   Finally, defendant failed to preserve for our review his contention that the People improperly elicited testimony concerning his postarrest silence (see CPL 470.05[2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: