People v Diomedez Madrigal

People v Madrigal 2004 NY Slip Op 07975 [12 AD3d 199] November 9, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

The People of the State of New York, Respondent,
v
Diomedez Madrigal, Appellant.

—[*1]

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered July 13, 1998, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the first and third degrees, and sentencing him to concurrent terms of 15 years to life and 7½ to 15 years, respectively, unanimously affirmed.

The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). Defendant's claim that the proposed inquiry would have violated his right against self-incrimination (see People v Betts, 70 NY2d 289 [1987]) is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court permitted only a very limited inquiry that would not have called for defendant to incriminate himself as to his pending case.

The court properly denied defendant's request to introduce a deceased witness's grand jury testimony into evidence. Defendant did not have a constitutional right to introduce this hearsay evidence under People v Robinson (89 NY2d 648 [1997]) because it was not critical to his defense (see People v Cordon, 261 AD2d 278 [1999], lv denied 93 NY2d 1016 [1999]). This witness's daughter provided similar testimony to the grand jury, and was available to testify at trial, but defendant chose not to call her (see United States v Inadi, 475 US 387, 394 [1986] [general preference for live testimony]). Concur—Nardelli, J.P., Mazzarelli, Lerner, Friedman and Marlow, JJ.