PEOPLE v. FIGUEROA

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

The PEOPLE of the State of New York, Respondent, v. Carlos FIGUEROA, Defendant–Appellant.

Decided: May 10, 2012

FRIEDMAN J.P., SWEENY, DeGRASSE, ABDUS–SALAAM, ROMÁN, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Rosemary Herbert of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Robert R. Sandusky, III of counsel), for respondent.

Judgment, Supreme Court, Bronx County (William A. Kelly, J.), rendered May 25, 2010, as amended June 28, 2010, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds, criminal sale of a controlled substance in the third degree, and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, to concurrent terms of seven years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).   There is no basis for disturbing the jury's credibility determinations, including its resolution of any alleged inconsistencies in testimony.

There was no violation of defendant's right to be present at all material stages of the trial.   The court spoke to the jury foreperson in the presence of counsel, but in defendant's absence, about matters concerning the functions of the foreperson.   It is evident from the totality of the colloquy that it only involved ministerial matters (see People v. Ochoa, 14 N.Y.3d 180, 187–188, 899 N.Y.S.2d 66, 925 N.E.2d 868 [2010] ), and there is no indication that the foreperson wanted to raise any substantive concerns.

We perceive no basis for reducing the sentence.