Opinion
May 11, 1995
Appeal from the Supreme Court, New York County (Richard Lowe, III, J.).
Defendant was not entitled to the "exceptional remedy" of dismissal of the indictment since the Grand Jury process was not impaired and he was not prejudiced as a result of the prosecutor's cross-examination (People v Gonzalez, 201 A.D.2d 414, 415, lv denied 83 N.Y.2d 871). Defendant opened the door to the vast majority of questions posed by the prosecutor, by informing the jury that Araind Johnson was an "a/k/a", and by suggesting that his purported illegal arrest was the culmination of months of harassment by the arresting officers, whom he claimed were trying to stop him from plying his partly "illegal" trade of selling "Street News" (People v Rosado, 212 A.D.2d 426; People v Walker, 83 N.Y.2d 455, 460-461). Any error in the prosecutor's inquiry regarding whether the officers had lied when they said that $295 had been recovered from defendant was not prejudicial, in light of "the presence of sufficient, admissible evidence which overwhelmingly indicates" defendant's possession of the drugs (People v Diaz, 209 A.D.2d 1, 6).
Although the trial court should have given a limiting instruction that the testimony regarding defendant's struggle with the officers during his attempt to escape should not be used as evidence of his propensity to commit the crime charged, "the court's final charge, read as a whole, conveyed the appropriate standard" to the jury (People v Archibald, 211 A.D.2d 451, 452).
We have considered defendant's remaining contention and find it to be without merit.
Concur — Murphy, P.J., Rubin, Ross, Williams and Tom, JJ.