PEOPLE v. DIN

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

The PEOPLE, etc., respondent, v. Kabeer DIN, appellant.

Decided: May 26, 2009

ROBERT A. SPOLZINO, J.P., JOSEPH COVELLO, DANIEL D. ANGIOLILLO, and THOMAS A. DICKERSON, JJ. Bernard V. Kleinman, White Plains, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato and Michael Blakey of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.), rendered May 16, 2007, convicting him of conspiracy in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Prior to voir dire, the People made an application to amend the indictment to change the description of the person targeted in the alleged conspiracy from “girlfriend” to “intended victim.”   Under the circumstances, the trial court providently exercised its discretion in granting that application (see CPL 200.70;  People v. George, 217 A.D.2d 987, 988, 630 N.Y.S.2d 174;  People v. Ames, 115 A.D.2d 543, 544, 496 N.Y.S.2d 65;  People v. Cruz, 285 App.Div. 1076, 139 N.Y.S.2d 722).

 During voir dire, the trial court providently exercised its discretion in declining to pose certain questions drafted by defense counsel to the prospective jurors (see CPL 270.15[1][b];  People v. Parks, 257 A.D.2d 636, 637, 684 N.Y.S.2d 288, affd. 95 N.Y.2d 811, 712 N.Y.S.2d 429, 734 N.E.2d 741).   Furthermore, defense counsel was provided a fair opportunity to ask the prospective jurors relevant and material questions (see CPL 270.15 [1][c];  cf. People v. Thompson, 45 A.D.3d 876, 877, 847 N.Y.S.2d 114).

 To the extent that the prosecutor misstated the law regarding conspiracy during voir dire, it did not constitute reversible error.   Since the trial court repeatedly advised the prospective jurors, as well as the seated jurors, that it would instruct them on the law, the prosecutor's statements could not have been interpreted by the jury as an instruction on the law (cf. People v. Giuca, 58 A.D.3d 750, 751, 871 N.Y.S.2d 709;  People v. Delphin, 26 A.D.3d 343, 812 N.Y.S.2d 552;  People v. Rosenblitt, 198 A.D.2d 382, 383, 603 N.Y.S.2d 888).

 The issue of whether the affirmative defense of entrapment was established was an issue of fact for the jury (see People v. McGee, 49 N.Y.2d 48, 60-61, 424 N.Y.S.2d 157, 399 N.E.2d 1177, cert. denied 446 U.S. 942, 100 S.Ct. 2166, 2167, 64 L.Ed.2d 797;  People v. Wicht, 48 A.D.3d 491, 851 N.Y.S.2d 266;  People v. Castro, 299 A.D.2d 557, 558, 750 N.Y.S.2d 510;  People v. Lopez, 242 A.D.2d 641, 664 N.Y.S.2d 755).   Sufficient evidence was adduced at the trial from which the jury could properly conclude that the defendant was not actively induced and was predisposed to commit the offense charged (see People v. Wicht, 48 A.D.3d at 491, 851 N.Y.S.2d 266;  People v. Castro, 299 A.D.2d at 558, 750 N.Y.S.2d 510;  People v. Lopez, 242 A.D.2d at 641, 664 N.Y.S.2d 755).

The defendant's contention that the conduct of the investigators was so egregious as to have denied him due process of law is unpreserved for appellate review (see CPL 470.05[2];  cf. CPL 210.40[1][e] ) and, in any event, is without merit (see People v. Kubasek, 167 A.D.2d 424, 562 N.Y.S.2d 452;  People v. Spivey, 151 A.D.2d 521, 522, 543 N.Y.S.2d 323;  cf. People v. Isaacson, 44 N.Y.2d 511, 520-521, 406 N.Y.S.2d 714, 378 N.E.2d 78).

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