PEOPLE v. SLATER (2009)

 Defendant appeals from a judgment convicting him upon a jury verdict of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ), criminal possession of a controlled substance in the third degree (§ 220.16[1] ), and criminal possession of a controlled substance in the fourth degree (§ 220.09[1] ).   The record establishes that, prior to trial, a potential witness for the defense indicated that she would invoke the Fifth Amendment in the event that defendant called her to testify.   Defendant asked County Court to instruct the jury that he wished to call that person to testify on his behalf and that he should not be penalized by her failure to do so.   We reject the contention of defendant that the court erred in refusing to charge the jury in accordance with his request.   Rather, we conclude that the court properly gave a neutral instruction to the jury concerning that witness, i.e., that it was not to draw any inference from her failure to testify (see People v. Tatro, 53 A.D.3d 781, 786-787, 862 N.Y.S.2d 154, lv. denied 11 N.Y.3d 835, 868 N.Y.S.2d 610, 897 N.E.2d 1094;  see generally People v. Thomas, 51 N.Y.2d 466, 472-473, 434 N.Y.S.2d 941, 415 N.E.2d 931).   Defendant failed to preserve for our review the contention in his pro se supplemental brief that the affidavit of that witness should have been admitted in evidence as a declaration against penal interest inasmuch as defendant never sought to introduce the affidavit in evidence (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] ).

 Even assuming, arguendo, that defendant is correct that the court erred in its Molineux ruling, we conclude that the error is harmless (see People v. Laws, 27 A.D.3d 1116, 812 N.Y.S.2d 200, lv. denied 7 N.Y.3d 763, 819 N.Y.S.2d 888, 853 N.E.2d 259;  see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).   We reject defendant's further contention that the court erred in imposing consecutive sentences for criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.  “[T]he sale and possession charges involved separate and distinct acts, allowing imposition of consecutive sentences upon conviction” (People v. Farga, 180 A.D.2d 484, 485, 580 N.Y.S.2d 20, lv. denied 80 N.Y.2d 830, 587 N.Y.S.2d 915, 600 N.E.2d 642;  see People v. Johnson, 286 A.D.2d 929, 930, 730 N.Y.S.2d 754, lv. denied 97 N.Y.2d 756, 742 N.Y.S.2d 616, 769 N.E.2d 362;  People v. Watson, 242 A.D.2d 924, 925, 662 N.Y.S.2d 876, lv. denied 91 N.Y.2d 899, 669 N.Y.S.2d 13, 691 N.E.2d 1039).   The further contention of defendant that he was improperly penalized for exercising his right to a trial is not preserved for our review (see People v. Griffin, 48 A.D.3d 1233, 1236-1237, 851 N.Y.S.2d 808, lv. denied 10 N.Y.3d 840, 859 N.Y.S.2d 399, 889 N.E.2d 86;  People v. Irrizarry, 37 A.D.3d 1082, 1083, 829 N.Y.S.2d 351, lv. denied 8 N.Y.3d 946, 836 N.Y.S.2d 557, 868 N.E.2d 240).   In any event, we conclude that the sentence imposed “was not the product of vindictiveness” (People v. Thompson, 299 A.D.2d 889, 890, 749 N.Y.S.2d 756, lv. denied 99 N.Y.2d 585, 755 N.Y.S.2d 721, 785 N.E.2d 743;  see Irrizarry, 37 A.D.3d at 1083, 829 N.Y.S.2d 351).   The contention of defendant in his pro se supplemental brief that the court erred in denying his request for new counsel based on an alleged conflict of interest is based on matters dehors the record, and thus it is not reviewable on direct appeal (see generally People v. Scott, 60 A.D.3d 1396, 876 N.Y.S.2d 271).   Insofar as the further contention of defendant in his pro se supplemental brief that he received ineffective assistance of counsel is also based on matters dehors the record, it is not reviewable on direct appeal (see People v. Martina, 48 A.D.3d 1271, 1272-1273, 852 N.Y.S.2d 527, lv. denied 10 N.Y.3d 961, 863 N.Y.S.2d 145, 893 N.E.2d 451;  People v. Smith, 32 A.D.3d 1291, 1292, 821 N.Y.S.2d 356, lv. denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800), and we conclude on the record before us that defendant's contention is otherwise without merit (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

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

MEMORANDUM: