Opinion
April 15, 1985
Appeal from the Supreme Court, Kings County (Hayes, J.).
Judgment affirmed.
Defendant was arrested on January 14, 1983, after he allegedly sold a quantity of cocaine to an undercover police officer for $10 during a "buy and bust" operation. The arresting officer recovered the $10 used by the undercover officer to buy the drugs from defendant. On this appeal he contends that his motion for a Wade hearing was improperly denied; that the jury did not consist of a cross section of the community because jury selection took place during the Jewish holiday of Succoth; that improper comments by the prosecutor during his opening statement and summation deprived him of a fair trial; and that his sentence was improperly based on unverified hearsay information and was excessive.
The record indicates that the undercover police officer viewed defendant through a two-way mirror at the 68th Precinct within minutes of the transaction, and after another officer had arrested defendant. The viewing was for the purpose of confirming that the right person had been arrested. Under the circumstances, the denial of a Wade hearing was not improper ( see, People v Morales, 37 N.Y.2d 262, 271-272; People v. Watkins, 67 A.D.2d 741, 742; People v. Hernandez, 124 Misc.2d 840, 842; People v Laurain, 84 Misc.2d 970; People v. Leftwich, 82 Misc.2d 993).
Defendant's claim that the jury did not consist of a cross section of the community because jury selection took place on September 22 and 23, 1983, during the Jewish holiday of Succoth, which allegedly prevented Orthodox Jews from serving on the jury, is without merit. There was no deliberate or systematic exclusion of members of the Jewish faith, as the defendant himself concedes in his brief. The mere fact that a voir dire of a jury is conducted on a Jewish holiday does not constitute an infringement of the right to a jury composed of a fair cross section of the community ( Grech v. Wainwright, 492 F.2d 747; United States v Suskin, 450 F.2d 596, 599; Scott v. State, 411 So.2d 866 [Fla]; Grech v. State, 243 So.2d 216 [Fla App], cert denied 247 So.2d 439 [Fla]; People v. Goodman, 92 Misc.2d 927; cf. People v Guzman, 60 N.Y.2d 403, cert denied ___ US ___, 104 S Ct 2155; People v. Seymour, 97 A.D.2d 907).
The allegedly improper comments made by the prosecutor during his opening statement and summation did not deprive defendant of a fair trial. The trial court sustained all of the objections to the comments and delivered prompt curative instructions to the jury to disregard the comments, and defense counsel did not request any further curative instructions. In view of the trial court's actions and the overwhelming proof of defendant's guilt in this case, a reversal and new trial is not required ( see, People v. Hopkins, 58 N.Y.2d 1079, 1083; People v. Galloway, 54 N.Y.2d 396; People v. Brosnan, 32 N.Y.2d 254; People v. Roopchand, 107 A.D.2d 35; People v. Gonzalez, 102 A.D.2d 895; People v Cuevas, 99 A.D.2d 553, People v. Brown, 91 A.D.2d 615). Finally, the information supplied to the trial court prior to the imposition of sentence was based, at least in part, on defendant's prior criminal history, including prior crimes for which defendant was never tried or convicted, which may properly be considered by the sentencing court ( see, e.g., Williams v. New York, 337 U.S. 241, reh denied 337 U.S. 961, reh denied 338 U.S. 841; United States v. Hansen, 701 F.2d 1078; People v. Whalen, 99 A.D.2d 883, 884; People v. Oliver, 96 A.D.2d 1104, affd 63 N.Y.2d 973; People v. Wright, 104 Misc.2d 911, 920). Additionally, defendant admitted at a prior trial that he was involved in various criminal activities. Therefore, there is no basis for vacatur of the sentence, and since the imposition of a sentence involves consideration "of the crimes charged, the particular circumstances of the offender, and the purposes of a penal sanction" ( People v. Suitte, 90 A.D.2d 80, 83, citing People v Farrar, 52 N.Y.2d 302, 305; People v. McConnell, 49 N.Y.2d 340, 346), the sentence imposed was not excessive. Titone, J.P., Thompson, Bracken and Rubin, JJ., concur.