PEOPLE v. CLABORN (2006)

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J. on suppression motion;  John Cataldo, J. at jury trial and sentence), rendered April 21, 2005, convicting defendant of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years and 2 to 4 years, respectively, unanimously affirmed.

All of the evidence challenged by defendant as hearsay and as violating the Confrontation Clause was introduced “for the legitimate, nonhearsay purpose of completing the narrative of events and explaining police actions” (People v. Guerrero, 22 A.D.3d 266, 801 N.Y.S.2d 739 [2005], lv. denied 5 N.Y.3d 882, 808 N.Y.S.2d 585, 842 N.E.2d 483 [2005];  see also People v. Smith, 27 A.D.3d 242, 243, 810 N.Y.S.2d 193 [2006], lv. denied 7 N.Y.3d 763, 819 N.Y.S.2d 888, 853 N.E.2d 259 [2006] ).

The People's summation did not deprive defendant of a fair trial.   The challenged portions constituted permissible responses to defendant's attacks on the credibility of prosecution witnesses, as well as legitimate inferences drawn from the evidence, and there was no shifting of the burden of proof (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] ).

The court properly denied defendant's suppression motion without a hearing (see People v. Mendoza, 82 N.Y.2d 415, 604 N.Y.S.2d 922, 624 N.E.2d 1017 [1993] ).   The conclusory denials in his initial papers were “ insufficient to raise an issue warranting a hearing” (People v. Davis, 256 A.D.2d 184, 683 N.Y.S.2d 26 [1998], lv. denied 93 N.Y.2d 968, 695 N.Y.S.2d 54, 716 N.E.2d 1099 [1999] ).   While the denial in defendant's motion to reargue was more specific, he could have made this denial from the outset, and he did not offer any excuse for omitting the additional facts from the original application (see People v. Ruth, 260 A.D.2d 296, 689 N.Y.S.2d 51 [1999], lv. denied 93 N.Y.2d 929, 693 N.Y.S.2d 512, 715 N.E.2d 515 [1999] ).

We perceive no basis for reducing the sentence.