PEOPLE v. BYRNE (1997)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Christopher BYRNE, Defendant-Appellant.

Decided: May 01, 1997

Before MURPHY, P.J., and ELLERIN, NARDELLI, WILLIAMS and ANDRIAS, JJ.

Rahul Kale, for Respondent. Thomas E. Crice, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Daniel FitzGerald, J.), rendered October 6, 1994, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him to concurrent terms of 4 to 12 years, unanimously affirmed.

By failing to request transcription of the attorneys' voir dire questioning of the first panel of prospective jurors, defendant waived such transcription (People v. Owens, 235 A.D.2d 268, 653 N.Y.S.2d 107). In any event, defendant has not been prejudiced by its absence (People v. Harrison, 85 N.Y.2d 794, 796, 628 N.Y.S.2d 939, 652 N.E.2d 638).

The undercover officer's radioed statement that he had just seen defendant sell drugs, and his sergeant's response that he should wait and continue his surveillance until the backup team was in place, were properly admitted to explain why the police did not arrest defendant after his first sale (see, People v. Hynes, 193 A.D.2d 516, 598 N.Y.S.2d 182, lv. denied 82 N.Y.2d 755, 603 N.Y.S.2d 997, 624 N.E.2d 183; People v. Candelario, 156 A.D.2d 191, 548 N.Y.S.2d 448, lv. denied 75 N.Y.2d 964, 556 N.Y.S.2d 249, 555 N.E.2d 621; see also, People v. Lantigua, 231 A.D.2d 437, 648 N.Y.S.2d 1, lv. denied 89 N.Y.2d 865, 653 N.Y.S.2d 288, 675 N.E.2d 1241).

We conclude that defendant received effective assistance of counsel (People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400). Defendant's trial counsel properly exercised independent professional judgment (see, People v. Ferguson, 67 N.Y.2d 383, 390, 502 N.Y.S.2d 972, 494 N.E.2d 77; People v. Ford, 205 A.D.2d 310, 612 N.Y.S.2d 575, lv. denied 84 N.Y.2d 1011, 622 N.Y.S.2d 922, 647 N.E.2d 128), and the court's decision denying defendant's CPL 330.30 motion, which had claimed ineffective assistance, was amply supported by the record.

We perceive no abuse of sentencing discretion, and find that the sentence was based entirely on permissible criteria.

MEMORANDUM DECISION.

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