Opinion
October 12, 1995
Appeal from the Supreme Court, New York County (Murray Mogel, J.).
Defense counsel's general motion to dismiss failed to preserve his present contentions that the People failed to prove defendant's guilt beyond a reasonable doubt ( People v. Gray, 86 N.Y.2d 10). In any event, viewing the evidence in a light most favorable to the People ( People v. Contes, 60 N.Y.2d 620, 621), the proof was legally sufficient to establish defendant's guilt of criminal sale of a controlled substance in the third degree. Upon an independent review of the facts, the verdict was not against the weight of the evidence ( People v. Bleakley, 69 N.Y.2d 490).
The court's Sandoval ruling, permitting inquiry of defendant, should he take the stand, as to the dates of occurrence and types of crimes of which he had previously been convicted, while precluding inquiry as to other specific facts, did not constitute an improvident exercise of discretion; the mere fact that his prior convictions were similar to the crimes of which he was charged in the instant case did not bar the prosecution from utilizing the former to impeach his credibility ( People v Arroyo, 194 A.D.2d 406, 407, lv denied 82 N.Y.2d 751). "`Our law does not require "the application of any particular balancing process" in Sandoval determinations * * * and there are no per se rules requiring preclusion because of the age, nature and number of a defendant's prior crimes'" ( People v. Gray, 84 N.Y.2d 709, 712, quoting People v. Walker, 83 N.Y.2d 445, 459, quoting People v. Pollock, 50 N.Y.2d 547, 550). Nor will the exercise of the trial court's Sandoval discretion be disturbed merely because the court did not provide a full account of its reasoning, particularly where, as here, the reasoning can be inferred from the parties' arguments ( People v. Walker, supra).
It was not an improvident exercise of discretion for the court to have admitted defendant's unredacted arrest photograph into evidence in light of the defense contention that defendant had been misidentified and beaten by the police ( see, People v Logan, 25 N.Y.2d 184, 195-196, cert denied 396 U.S. 1020). Defendant did not appear in prison garb ( cf., People v. Roman, 35 N.Y.2d 978), handcuffs or shackles ( cf., People v. Neu, 124 A.D.2d 885) and did not appear disheveled or disreputable ( cf., People v. Black, 117 A.D.2d 512). Nothing in the photograph contained information to suggest to the jury that he had a prior arrest record ( see, People v. Caserta, 19 N.Y.2d 18, 21), and the court's limiting instruction, to which defense counsel did not object, dispelled any possible prejudice.
The prosecutor's summation constituted a proper response to that of defense counsel and neither denigrated the defense nor inflamed the passions of the jury ( People v. Galloway, 54 N.Y.2d 396). Although the prosecutor should not have injected his own personal belief as to the veracity of defendant's testimony concerning abuse by the police, the isolated comment does not warrant a reversal of the conviction ( People v. Gray, 202 A.D.2d 206, lv denied 83 N.Y.2d 911).
Concur — Murphy, P.J., Rubin, Kupferman and Williams, JJ.