PEOPLE v. GONZALEZ (2008)

Judgments, Supreme Court, New York County (Marcy Kahn, J.), rendered March 2, 2006 (defendant Gonzalez) and March 3, 2006 (defendant Ortiz), convicting defendants, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing each defendant to a term of 1 to 3 years, unanimously affirmed.   The matter is remitted to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50(5) as to each defendant.

The verdicts are based on legally sufficient evidence and are not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).   There is no basis for disturbing the jury's determinations concerning credibility and identification.   The evidence satisfactorily explained the inability of the police to recover buy money from defendant Gonzalez, and there was no merit to defendant Ortiz's agency defense.

The court properly denied Ortiz's suppression motion.   The hearing evidence established, circumstantially, that Ortiz was arrested because she matched the undercover officer's radioed description of one of the participants in a drug transaction (see People v. Poole, 45 A.D.3d 501, 847 N.Y.S.2d 42 [2007] ).

The court properly denied defendants' challenge for cause to a prospective juror who demonstrated difficulty understanding the court's preliminary charge on the People's burden of proof, since, after the court's further explanation of that subject, the panelist gave her unequivocal assurance that she understood the court's instructions and would follow them (see People v. Serrano, 19 A.D.3d 303, 797 N.Y.S.2d 92 [2005], affd. 7 N.Y.3d 730, 818 N.Y.S.2d 175, 850 N.E.2d 1151 [2006] ).

The court properly exercised its discretion in permitting jurors to submit questions to witnesses, subject to a careful screening process (see People v. Miller, 8 A.D.3d 176, 177, 779 N.Y.S.2d 187 [2004], mod. on other grounds 6 N.Y.3d 295, 812 N.Y.S.2d 20, 845 N.E.2d 451 [2006] ).   Defendants' assertion that certain questions revealed that the inquiring jurors had prematurely formed opinions on the merits is speculative.

The trial court properly denied defendants' CPL 330.30(2) motions alleging juror misconduct.   The record supports the court's findings, made after a thorough hearing, that there was no prejudicial misconduct that would warrant a new trial (see People v. Rodriguez, 100 N.Y.2d 30, 35, 760 N.Y.S.2d 74, 790 N.E.2d 247 [2003] ).

Defendant Ortiz's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters outside the record with regard to counsel's strategic decisions and allegedly unprofessional demeanor (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];  People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ).   On the existing record, to the extent it permits review, we find that Ortiz received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).   Counsel made reasonable strategic decisions regarding the introduction of character evidence, and in handling aspects of Ortiz's prior conviction.