People v Estrada (Victor)

[*1] People v Estrada (Victor) 2005 NY Slip Op 50212(U) Decided on February 22, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 22, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: February 22, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
2002-1783 Q CR

The People of the State of New York, Respondent,

against

Victor Estrada, Appellant.

Appeal by defendant from a judgment of the Criminal Court, Queens County (B. Kron, J.), rendered December 2, 2002, convicting him, after a jury trial, of criminal possession of a controlled substance in the seventh degree (Penal Law

§ 220.03) and imposing sentence.

Judgment of conviction unanimously affirmed.

Defendant claims that the admission of the arresting officer's testimony as to the content of a police radio bulletin, based on an anonymous 911 call, violated his rights under the Confrontation Clause and constituted impermissible bolstering, are not preserved for appellate review (CPL 470.05 [2]; People v Kello, 96 NY2d 740, 743 [2001]; People v Love, 57 NY2d 1023, 1025 [1982]; People v Blackman, ___ AD3d ___, 2004 NY Slip Op 09655 [2d Dept]; People v Sanchez, 302 AD2d 282, 283 [2003]; People v Watkins, 212 AD2d 357 [1995]; cf. People v Garcia, 2 AD3d 321, 322 [2003] [objection on state evidentiary law preserves no Confrontation Clause claim]). Defendant's claim that the evidence constituted inadmissible hearsay on state law grounds is without merit. The court issued a prompt curative instruction that the evidence was admitted not for the truth of the report but for the limited purpose of "explaining the . . . context" for the witness's conduct at the arrest scene (e.g. People v Nelson, 5 AD3d 134, 135 [2004]; People v Williams, 216 AD2d 159 [1995]), which the jury is presumed to have followed (People v Davis, 58 NY2d 1102, 1104 [1983]), and to which defendant took no exception (People v Galloway, 54 NY2d 396, 400 [1981]; People v [*2]Demosthene, 225 AD2d 488, 489 [1996]).

Finally, with regard to defendant's argument that he was prejudiced by the prosecutor's reference to the disputed evidence on summation, defendant interposed no objection whatsoever to that conduct and preserved no issue based thereon for appellate review (People v Glover, 11 AD3d 478, 479 [2004]). Indeed, in his own summation, defense counsel referred to the testimony as to the content of the police radio report as though in evidence for the truth of the matters contained therein, to support his claim that the police "pinned" the drugs on defendant merely because of his superficial resemblance to the broadcast descriptions and to demonstrate to new police recruits "how this is done." Counsel thereby "opened the door" to the prosecutor's use of that evidence in a similar fashion to rebut the clear implication that defendant was framed (e.g. People v Russo, 201 AD2d 512, 513 [1994], affd 85 NY2d 872 [1985] [normally improper comment by a prosecutor allowed as a permissible "fair response to the defense counsel's . . . summation"]; People v Woody, 9 AD3d 439, 440 [prosecutor entitled to a "fair response[ ] to the defense counsel's summation comments"]; People v Pender, 8 AD3d 409 [2004] [same]).
Decision Date: February 22, 2005