The People, etc., respondent, v. Shateek Bilal, appellant. (2010)

Argued-November 18, 2010

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (R. Bellantoni, J.), rendered August 20, 2007, convicting him of criminal sale of a controlled substance in or near school grounds (two counts), criminal sale of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the third degree (two counts), and criminal possession of a controlled substance in the seventh degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the convictions of criminal possession of a controlled substance in the seventh degree (two counts), vacating the sentences imposed thereon, and dismissing those counts of the indictment;  as so modified, the judgment is affirmed.

The defendant's contention that his convictions were not supported by legally sufficient evidence is unpreserved for appellate review, as defense counsel's motion for dismissal lacked any specificity (see CPL 470.05[2];  People v. Hawkins, 11 NY3d 484, 491-492).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5];  People v. Romero, 7 NY3d 633).

Contrary to the People's assertion, the defendant's contention regarding the admission of hearsay evidence was preserved for appellate review (see CPL 470.05[2];  People v. Ayala, 142 A.D.2d 147, 156, affd 75 N.Y.2d 422).   However, it is without merit, as in each instance, the testimony that, at some point, the witness learned a transaction had been completed, was offered not as proof that there had been a transaction, but “to provide necessary background information to the jury” (People v. Johnson, 40 AD3d 1011, 1012;  see People v. Tosca, 98 N.Y.2d 660, 661).

The defendant was not deprived of a fair trial by the Supreme Court's refusal to allow him to display his burns, tattoos, and gold teeth in support of his defense of mistaken identity, since his sister was permitted to testify regarding these features (see People v. Mendez, 138 A.D.2d 637, 638).

The defendant's challenge to certain remarks made by the prosecutor during her summation is not preserved for appellate review, as no objection was made at the time (see CPL 470.05[2] ).   In any event, the challenged remarks do not require reversal (see People v. Mereness, 43 AD3d 473;  People v. Bradley, 38 AD3d 793, 794).

The Supreme Court providently exercised its discretion in denying, without a hearing, the defendant's application, submitted as part of his CPL 330.30 motion, for a reconstruction hearing to determine retrospectively his mental competency during the trial.  “A defendant is presumed competent and the court is under no obligation to issue an order of examination unless it has reasonable ground ․ to believe that the defendant was an incapacitated person” (People v. Morgan, 87 N.Y.2d 878, 880 [internal quotation marks and citations omitted] ).   The presumption of competency “cannot be rebutted by a mere showing that the defendant has a history of mental illness” (People v. Hansen, 269 A.D.2d 467, 467;  see People v. Tortorici, 92 N.Y.2d 757, 765, cert denied 528 U.S. 834;  People v. Morgan, 87 N.Y.2d at 881;  People v. Galea, 54 AD3d 686, 687), nor is a subsequent finding of mental illness evidence of a lack of competency during the subject time period (see People v. Gelikkaya, 84 N.Y.2d 456, 459-460).   Here, there is nothing in the record “to indicate that during trial ․ the defendant did not have a sufficient present ability to consult with [his] lawyer with a reasonable degree of rational understanding or have a rational as well as factual understanding of the proceedings against [him]” (People v. Greco, 177 A.D.2d 648, 648;  see Dusky v. United States, 362 U.S. 402;  People v. Francabandera, 33 N.Y.2d 429).

As the People correctly concede, the defendant's convictions of two counts of criminal possession of a controlled substance in the seventh degree must be vacated, the sentences thereon must be vacated, and those counts of the indictment dismissed, as they are inclusory concurrent counts of criminal possession of a controlled substance in the third degree (see CPL 300.40[3] [b] ).

The remaining arguments set forth in the defendant's supplemental pro se brief are without merit.

PRUDENTI, P.J., DILLON, BALKIN and CHAMBERS, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court