PEOPLE v. TOCCO

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

The PEOPLE of the State of New York, Respondent, v. Thomas TOCCO, Defendant-Appellant.

Decided: February 23, 1999

ROSENBERGER, J.P., WILLIAMS, MAZZARELLI and SAXE, JJ. Jennifer Correale, for Respondent. Nathan Z. Dershowitz, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Richard Price, J.), rendered April 29, 1997, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the first degree (2 counts), criminal possession of a controlled substance in the second degree (2 counts), and criminal possession of a controlled substance in the third degree (2 counts), and sentencing him to two consecutive terms of 22 years to life on the first-degree sale convictions, to run concurrently with two concurrent terms of 6 years to life on the second-degree possession convictions, and two concurrent terms of 6 to 18 years on the third-degree possession convictions, unanimously affirmed.

 Although in requesting a charge on the defense of entrapment defendant argued that the police had induced him to make a sale of narcotics, defendant never asserted that the police engaged in egregious conduct or raised a specific claim that the alleged misconduct mandated dismissal of the indictment pursuant to People v. Isaacson, 44 N.Y.2d 511, 406 N.Y.S.2d 714, 378 N.E.2d 78.   Thus, defendant's current claim in that regard is unpreserved for appellate review (People v. Montgomery, 88 N.Y.2d 1041, 1043, 650 N.Y.S.2d 632, 673 N.E.2d 917), and we decline to review it in the interest of justice.   Were we to consider this claim, we would conclude that the police conduct was entirely proper and that none of the Isaacson criteria was met.

 With respect to defendant's entrapment claim, we agree with the trial court that no reasonable view of the evidence supported an entrapment defense charge.   Witnesses for both the People and the defense acknowledged that defendant was but one of many targets in a long-term undercover investigation designed to gather evidence about a corrupt police officer, an arson-homicide, and other homicides.   Defendant was never targeted for the sale of cocaine to the undercover officer.   To the contrary, the undercover officer was explicitly instructed to engage in drug purchases with anyone interested in selling.   Thereafter, defendant twice willingly offered to sell cocaine to the undercover officer on his terms and at a price he set.

 We reject defendant's argument that he was entitled to an entrapment charge simply because the People introduced evidence to rebut that defense.   The People's right to introduce such evidence on their direct case was triggered by defendant's unequivocal declarations that he was relying on the entrapment defense (see, People v. Mann, 31 N.Y.2d 253, 260, 336 N.Y.S.2d 633, 288 N.E.2d 595;  People v. Rollova, 124 A.D.2d 886, 889, 508 N.Y.S.2d 653), and their exercise of that right does not bestow upon defendant an absolute entitlement to the charge.   To warrant the charge, defendant always has the burden of making the required showing (People v. Brown, 82 N.Y.2d 869, 871, 609 N.Y.S.2d 164, 631 N.E.2d 106).   This he failed to do.

 The court properly exercised its discretion in permitting the undercover officer to testify behind a screen.   This was not a complete closure of the courtroom because the screen permitted spectators to hear the testimony, thus avoiding concerns about secret proceedings.   At the same time, the screen was placed so that defendant and the jury could observe the witness's demeanor.   The court's instructions prevented the jury from drawing any adverse inference from the presence of the screen.   Even if we were to apply the standards for complete closure, we would find that the proof adduced at the Hinton hearing, replete with evidence of organized-crime involvement and threatened and actual violence against informants and undercover officers, overwhelmingly supported full closure, including exclusion of defendant's relatives.   We also find ample basis for permitting the officer to testify anonymously (People v. Kearse, 215 A.D.2d 104, 626 N.Y.S.2d 88, lv. denied 86 N.Y.2d 797, 632 N.Y.S.2d 510, 656 N.E.2d 609).

We have considered and rejected defendant's remaining arguments, and find no abuse of discretion in sentencing.

MEMORANDUM DECISION.