PEOPLE v. BRADSHAW (2024)

DECISION & ORDER

Appeals by the defendant from (1) a judgment of the County Court, Orange County (Craig S. Brown, J.), rendered January 20, 2022, convicting him of criminal sale of a controlled substance in the third degree (three counts) and criminal possession of a controlled substance in the third degree (three counts), under Indictment No. 69/20, upon a jury verdict, and imposing sentence, and (2) an amended judgment of the same court, also rendered January 20, 2022, revoking a sentence of probation previously imposed by the same court under Indictment No. 193/18, upon a finding that he had violated conditions thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of criminal possession of a controlled substance in the third degree.

ORDERED that the judgment and the amended judgment are affirmed.

The defendant's trial took place at a time when COVID–19–related protocols required individuals in the courtroom, including the defendant, to wear a face mask.  The defendant contends that the prosecutor violated his right to a fair trial when the prosecutor told the jury, during summation, that it may send a note asking the County Court to direct the defendant to remove his mask to show his face.  However, as the defendant did not object to the summation remark at issue or make a timely motion for a mistrial on the specific grounds now asserted on appeal, his contention that the prosecutor's summation remark deprived him of a fair trial is unpreserved for appellate review (see CPL 470.05[2];  People v. Ambers, 115 A.D.3d 671, 672, 981 N.Y.S.2d 554).  To the extent that the defendant's claim that he did raise an objection to the summation remark at issue is based on matter dehors the record, it is not reviewable on direct appeal (see People v. Boyce, 118 A.D.3d 1016, 1017, 988 N.Y.S.2d 262).  In any event, the prosecutor's summation remark was responsive to defense counsel's summation comments (see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;  People v. Komynar, 210 A.D.3d 698, 700, 177 N.Y.S.3d 672).  To the extent that the prosecutor's remark was improper, it was not so flagrant or pervasive as to have deprived the defendant of a fair trial (see People v. Komynar, 210 A.D.3d at 700, 177 N.Y.S.3d 672).

Contrary to the defendant's contention, the record does not reflect that the County Court exercised any retaliation or vindictiveness against the defendant for electing to proceed to trial under Indictment No. 69/20 (see People v. Garcia, 222 A.D.3d 659, 660, 201 N.Y.S.3d 181;  People v. Hunter, 151 A.D.3d 1077, 54 N.Y.S.3d 866).  Moreover, the sentences imposed under Indictment Nos. 193/18 and 69/20 were not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

BRATHWAITE NELSON, J.P., MALTESE, WAN and LANDICINO, JJ., concur.