People v. Mallard

126 A.D.3d 454, 5 N.Y.S.3d 388

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 10, 2015
• Docket: 14005 3754N/10
• Status: Published

Opinions

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J., at Hinton hearing; Lewis Bart Stone, J., at nonjury trial and sentencing), rendered July 21, 2011, as amended August 11, 2011, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of four years, affirmed.

Although the court improperly permitted the People to rebut an agency defense that defendant never actually asserted, we find that the error was harmless. In his motion for a trial order of dismissal at the end of the People’s case, defense counsel made a reference to the concept of agency, but in response to the court’s inquiry he unequivocally disclaimed any intention of asserting the agency defense, or any defense other than his client’s complete noninvolvement in the drug transaction. While defense counsel’s reference to the agency defense during his dismissal motion may have been confusing, prompting the court to allow the People to reopen their case to present evidence rebutting that defense, we find that in the context of this nonjury trial, this error was harmless because there is no reasonable possibility that the error might have contributed to the conviction (People v Crimmins, 36 NY2d 230, 237 [1975]).

An undercover officer (UC 19) testified that he had approached a man he identified as JD Braids, seeking to buy heroin. After agreeing to help UC 19 buy the drugs if he was allowed to keep $10 for himself, JD Braids approached and spoke to defendant. JD Braids returned to UC 19 conveying that defendant would “take” him if he too could keep $10 for himself. UC 19 understood this to mean that defendant would escort him to buy drugs. UC 19 agreed to this arrangement and then JD Braids, in his presence, handed the payment money over to defendant. Defendant asked UC 19 to walk with him to a nearby park. Defendant placed one phone call on the way there and a second call once inside the park, stating in substance, “I’m here.” Defendant told UC 19 to have a seat and defendant walked over to a group of people. UC 19 observed one of the men in the group (later identified as McKeney, a codefendant) greet defendant and hand him something. Defendant returned to UC 19 and as they left the park, defendant handed UC 19 two glassine envelopes, which later tested positive for heroin. Given this overwhelming evidence of guilt, there is no reason to believe that the erroneously admitted evidence affected the court’s verdict.

The Hinton hearing court, which closed the courtroom for the testimony of two undercover officers and which offered to permit family members or other persons designated by defendant to enter, properly exercised its discretion in rejecting defense counsel’s proposal that a court officer screen members of the general public who sought to enter during the testimony. The court concluded that this suggestion would have been impracticable because there was no additional court officer available to be posted outside the courtroom, and because in any event the officer would frequently have to interrupt the testimony to report the presence of persons seeking to enter. Therefore, under the circumstances presented, defendant’s proposal was not a “reasonable alternative[ ] to closing the proceeding” (Waller v Georgia, 467 US 39, 48 [1984]).

Concur— Gonzalez, P.J., Renwick, DeGrasse and Gische, JJ.