The People, etc., respondent, v. Lee Vargas, appellant. (2026)

Argued—June 12, 2026

DECISION & ORDER

W/

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Peter F. Vallone, Jr., J.), rendered February 8, 2019, convicting him of sex trafficking (three counts), promoting prostitution in the second degree, and promoting prostitution in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the Supreme Court deprived him of a fair trial by denying his request to access and review the psychiatric records of a witness and precluding him from using those records to cross-examine the witness is without merit.  While the right of an accused to confront the witnesses against him through cross-examination is a fundamental right of constitutional dimension (see U.S. Const, 6th, 14th Amends;  NY Const, art I, § 6;  Davis v. Alaska, 415 U.S. 308;  People v. Parker, 57 N.Y.2d 136, 139) and “the principal means by which the believability of a witness and the truth of his [or her] testimony are tested” (Davis v. Alaska, 415 U.S. at 316), that right must be balanced against the witness's need for confidentiality (see People v. Viera, 133 AD3d 622, 623).

Here, the Supreme Court, after inspecting the records in camera, properly balanced the interests of justice against the witness's need for confidentiality and providently exercised its discretion in denying the defendant's application for disclosure of the records and use of the records in cross-examination (see People v. Viera, 133 AD3d at 623;  People v. Bird, 284 A.D.2d 339, 339).

To the extent the People presented the testimony of an expert on human trafficking that the complainant exhibited signs of being a victim of human trafficking, the admission of such testimony was error (see People v. O'Sullivan, 211 AD3d 751, 753).  Further, to the extent the People presented the testimony of a lay witness that she believed that the complainant could have been a victim of sex trafficking, the admission of such testimony was error (see People v. Lewis, 225 AD3d 896, 898;  People v. Reddick, 164 AD3d 526, 527).  Nevertheless, the error in the admission of such testimony was harmless, because there was overwhelming evidence of the defendant's guilt and no significant probability that, absent the errors, the defendant would have been acquitted (see People v. Crimmins, 36 N.Y.2d 230).  Furthermore, the errors did not deprive the defendant of his fundamental right to a fair trial (see People v. Crimmins, 36 N.Y.2d at 238;  People v. Tyme, 222 AD3d 783, 784).

The defendant's contention that he was deprived of a fair trial by certain remarks made by the prosecutor during summation is mostly unpreserved for appellate review (see CPL 470.05[2];  People v. Romero, 7 NY3d 911, 912;  People v. Green, 238 AD3d 1071, 1071).  In any event, the defendant's contention is without merit.  The majority of the challenged remarks made by the prosecutor during summation were within the bounds of permissible rhetorical comment (see People v. Ashwal, 39 N.Y.2d 105, 109), fairly responsive to arguments made in defense counsel's summation (see People v. Basnight, 248 AD3d 1048, 1048), or constituted fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d at 109;  People v. Basnight, 248 AD3d at 1048).  To the extent that any of the challenged remarks were improper, they were not so pervasive or egregious as to deprive the defendant of a fair trial (see People v. Basnight, 248 AD3d at 1048).

The defendant's contention that certain counts of the indictment were multiplicitous is unpreserved for appellate review, and, under the circumstances of this case, we decline to review it in the exercise of our interest of justice jurisdiction (see People v. O'Sullivan, 211 AD3d at 751;  People v. Denton, 187 AD3d 933, 933).

The defendant's contention, raised in his pro se supplemental brief, that he was deprived of the effective assistance of counsel is based on matters outside the record on appeal and, therefore, cannot be reviewed on direct appeal (see People v. Floyd, 248 AD3d 823, 824–825;  People v. Small, 203 AD3d 756, 756).  The appropriate vehicle for review of such a contention is a motion pursuant to CPL 440.10 (see People v. Rose, 193 AD3d 885, 885;  People v. Shabazz, 174 AD3d 824, 825).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).

The remaining contentions raised in the defendant's pro se supplemental brief are unpreserved for appellate review and, in any event, without merit.

BARROS, J.P., FORD, MCCORMACK and OTTLEY, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court