Opinion
February 3, 1995
Appeal from the Onondaga County Court, Elliott, J.
Present — Denman, P.J., Pine, Lawton, Doerr and Davis, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: The trial court erred by instructing the jury that "[r]easonable doubt must * * * be based entirely and absolutely upon some good, sound substantial reason" and that, if the jury was "reasonably certain as to the defendant's guilt", it was their duty to convict defendant (see, People v. Jackson, 199 A.D.2d 1002, lv denied 83 N.Y.2d 872; see also, People v. Grant, 197 A.D.2d 910, lv denied 82 N.Y.2d 895; People v. Freeman, 193 A.D.2d 1117, lv denied 82 N.Y.2d 718). We therefore reverse defendant's conviction and grant a new trial. Reversal is likewise required because the record establishes that defendant was not present for a Sandoval hearing and that the ruling of the court was not entirely favorable to him (see, People v Favor, 82 N.Y.2d 254, rearg denied 83 N.Y.2d 801; People v Dokes, 79 N.Y.2d 656, 662). Subsequent recitation in defendant's presence of the gist of its Sandoval ruling by the court did not constitute a de novo hearing (see, People v. DiMartino, 203 A.D.2d 934, lv denied 84 N.Y.2d 825).
We address defendant's remaining arguments insofar as they may be relevant in the event of a retrial. The court erred in denying defendant's motion to strike testimony by a prosecution witness that revealed defendant's status as a parole violator. That testimony was irrelevant and extremely prejudicial (see, People v. Melvin, 201 A.D.2d 907, lv denied 83 N.Y.2d 1005; People v. Cole, 186 A.D.2d 966, 967). We conclude that defendant's suppression motion was properly denied because the police had probable cause to arrest defendant. The court properly denied defendant's motion to suppress the in-court identification by Ronald Smith. Defendant argued that Smith's in-court identification was tainted by Smith's viewing of him at a parole revocation hearing. The parole revocation hearing was not a police-arranged identification procedure, and thus its suggestiveness does not implicate due process (see, People v White, 73 N.Y.2d 468, 474, cert denied 493 U.S. 859; People v MacKay, 98 A.D.2d 732; People v. Marshall, 91 A.D.2d 643, 644). Because there was conflicting testimony whether Rufus Elmore was an accomplice, that issue was properly submitted to the jury as one of fact (see, People v. Sweet, 78 N.Y.2d 263, 266; People v Lafferty, 177 A.D.2d 1043, 1044, lv denied 79 N.Y.2d 921). Nevertheless, the court erred in failing to instruct the jury to consider whether the witness was an accomplice pursuant to CPL 60.22 (2) (b). Finally, the court properly charged the jury that defendant could be convicted upon proof of his guilt as an accomplice, even though defendant was charged as a principal (see, People v. Hobbs, 185 A.D.2d 619, 620, lv denied 80 N.Y.2d 1027).