PEOPLE v. CANTO (2006)

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

 The court's Sandoval ruling, which permitted elicitation of defendant's prior drug convictions without revealing their underlying facts, balanced the appropriate factors and was a proper exercise of discretion (see People v. Hayes, 97 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002];  People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216 [1983] ).   Since these convictions were relevant to defendant's willingness to place his interests above those of society, it was appropriate to identify in order to assist the jury in evaluating defendant's credibility.

 Defendant contends that the court's interruption of defendant's summation to provide the jury with a brief instruction on police investigatory techniques deprived defendant of the right to present an effective summation and, ultimately, of a fair trial.   After the interruption, however, defendant was fully able to pursue and complete the same line of argument he had been making, and the court's instruction did not undermine defendant's defense (see People v. Jiovani, 258 A.D.2d 277, 685 N.Y.S.2d 66 [1999], lv. denied 93 N.Y.2d 900, 689 N.Y.S.2d 712, 711 N.E.2d 988 [1999];  see also People v. Lilly, 264 A.D.2d 684, 696 N.Y.S.2d 423 [1999], lv. denied 94 N.Y.2d 825, 702 N.Y.S.2d 595, 724 N.E.2d 387 [1999];  People v. Kramer, 240 A.D.2d 204, 658 N.Y.S.2d 290 [1997], lv. denied 91 N.Y.2d 875, 668 N.Y.S.2d 574, 691 N.E.2d 646 [1997];  compare People v. Williams, 5 N.Y.3d 732, 800 N.Y.S.2d 360, 833 N.E.2d 695 [2005] ).

We are not persuaded, based on a “review of the record as a whole,” and given the overwhelming proof of defendant's guilt that the jury was “prevented from arriving at an impartial judgment on the merits” (People v. Moulton, 43 N.Y.2d 944, 946, 403 N.Y.S.2d 892, 374 N.E.2d 1243 [1978] ).   Therefore, there is no basis to overturn the verdict on the grounds of the trial judge's conduct.

It must be noted however that we have previously remarked upon the trial judge's interference with the conduct of criminal trials (see People v. Melendez, 31 A.D.3d 186, 815 N.Y.S.2d 551 [2006];  People v. Robles, 26 A.D.3d 177, 812 N.Y.S.2d 465 [2006];  People v. Straniero, 17 A.D.3d 161, 162, 792 N.Y.S.2d 466 [2005], lv. denied 5 N.Y.3d 795, 801 N.Y.S.2d 816, 835 N.E.2d 676 [2005];  People v. Thompson, 8 A.D.3d 213, 214, 779 N.Y.S.2d 190 [2004], lv. denied 3 N.Y.3d 742, 786 N.Y.S.2d 822, 820 N.E.2d 301 [2004];  People v. Moore, 6 A.D.3d 173, 174, 773 N.Y.S.2d 873 [2004], lv. denied 3 N.Y.3d 661, 782 N.Y.S.2d 703, 816 N.E.2d 576 [2004];  People v. Robinson, 3 A.D.3d 404, 770 N.Y.S.2d 618 [2004], lv. denied 2 N.Y.3d 765, 778 N.Y.S.2d 783, 811 N.E.2d 45 [2004] ).   We note once more that the trial court's interference was improvident and wholly unnecessary.

 Defendant is not entitled, pursuant to the amelioration doctrine of People v. Behlog, 74 N.Y.2d 237, 544 N.Y.S.2d 804, 543 N.E.2d 69 [1989], to the benefit of the reduced penalty contained in the Drug Law Reform Act (L. 2004, ch. 738), because the Legislature has expressly stated that the provision upon which defendant relies applies only to crimes committed after its effective date (People v. Nelson, 21 A.D.3d 861, 804 N.Y.S.2d 1 [2005], lv. granted 6 N.Y.3d 757, 810 N.Y.S.2d 425, 843 N.E.2d 1165 [2005] ).   In any event, the amelioration doctrine does not apply where, as here, a defendant was sentenced before the new law's effective date (People v. Walker, 81 N.Y.2d 661, 666-667, 603 N.Y.S.2d 280, 623 N.E.2d 1 [1993] ).