Opinion
May 6, 1985
Appeal from the County Court, Westchester County (Cowhey, J.).
Judgment affirmed.
Defendant has failed to make a factual showing sufficient to establish a prima facie case of systematic discrimination in the selection of the petit jury ( see, People v. McCray, 57 N.Y.2d 542, cert denied 461 U.S. 961; People v. Charles, 61 N.Y.2d 321, 329; People v. Galarza, 109 A.D.2d 892). Defendant's assertion that no Sandoval hearing ( see, People v. Sandoval, 34 N.Y.2d 371) was held has been shown by the People to be erroneous; a Sandoval hearing was indeed held. In addition, defendant's prior convictions were probative on the issue of defendant's credibility as a witness, and it was not improper for the trial court to permit the prosecutor to question defendant with respect to these convictions ( see, People v. Sandoval, supra). With respect to defendant's contention that the trial court erred by singling him out as an interested witness as a matter of law, assuming, arguendo, that the charge was improper, the error was harmless in view of the overwhelming proof of defendant's guilt ( see, People v. Crimmins, 36 N.Y.2d 230; cf. People v. Staples, 103 A.D.2d 759). Lastly, defendant contends that in the portion of its charge defining reasonable doubt, the trial court improperly equated proof beyond a reasonable doubt with proof to a "moral certainty" and improperly instructed the jury to find him not guilty if their "minds are wavering" or if the "scales are even". It is well established that such language is improper ( People v Wade, 99 A.D.2d 474; People v. Ortiz, 92 A.D.2d 595). However, no exception was taken. In any event, an examination of the entire charge indicates that the concept of reasonable doubt was fully and properly explained to the jury. Therefore, the error does not warrant reversal in the interest of justice ( see, People v. Dee, 106 A.D.2d 582; People v. Ortiz, supra; People v. Turrell, 66 A.D.2d 862, affd 50 N.Y.2d 400). Mollen, P.J., Titone, O'Connor and Rubin, JJ., concur.