PEOPLE v. ASENCIA

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

The PEOPLE, etc., Respondent, v. Amilcar ASENCIA, Appellant.

Decided: February 26, 2001

GABRIEL M. KRAUSMAN, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN and DANIEL F. LUCIANO, JJ. Laura M. Miranda, New York, N.Y., for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Phyllis Mintz of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Grajales, J.), rendered December 22, 1994, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

During a so-called “buy and bust” operation in Brooklyn on July 6, 1994, the defendant sold a glassine envelope containing heroin to Carmen Vasquez, who then sold it to an undercover police officer for $15.   Upon his arrest, the defendant had on his person seven additional glassine envelopes of heroin and $1,201 in cash.

 The absence of a stenographic record of some of the voir dire proceedings does not require the reversal of a defendant's conviction (see, People v. Harrison, 85 N.Y.2d 794, 796, 628 N.Y.S.2d 939, 652 N.E.2d 638;  People v. Lane, 241 A.D.2d 763, 660 N.Y.S.2d 890).   Although the court's questioning of the prospective venirepersons was stenographically recorded, the attorneys' ensuing questioning was not.   The defendant did not show that he requested that the continuing voir dire be recorded, that his request was denied, and that the failure to record the proceedings prejudiced him (see, People v. Lane, supra).   In addition, the defendant never asked for a reconstruction hearing (see, People v. Glass, 43 N.Y.2d 283, 401 N.Y.S.2d 189, 372 N.E.2d 24;  People v. Cameron, 219 A.D.2d 662, 631 N.Y.S.2d 717).

 The court properly closed the courtroom during the undercover officer's testimony, as that officer testified at the Hinton hearing (see, People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265, cert. denied 410 U.S. 911, 93 S.Ct. 970, 35 L.Ed.2d 273) that he had worked as an undercover officer in the defendant's neighborhood until the time of trial, that he was scheduled to continue to work there in the future, that his effectiveness would be jeopardized if his identity were disclosed, that he had pending cases and lost subjects from the area, and that he feared for his safety if he were to testify in open court (see, People v. Martinez, 82 N.Y.2d 436, 604 N.Y.S.2d 932, 624 N.E.2d 1027;  People v. Duke, 235 A.D.2d 547, 653 N.Y.S.2d 363;  People v. Caraballo, 221 A.D.2d 553, 634 N.Y.S.2d 135;  People v. Mitchell, 209 A.D.2d 444, 618 N.Y.S.2d 457;  People v. Skinner, 204 A.D.2d 664, 612 N.Y.S.2d 419).

The defendant's remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit.

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