Opinion
February 8, 1994
Appeal from the Supreme Court, New York County (Renee A. White, J.).
Viewing the evidence in the light most favorable to the People, and bearing in mind that credibility is for the trier of fact (People v. Contes, 60 N.Y.2d 620, 621), we find that the verdict was based on legally sufficient evidence, and was not against the weight of the evidence (People v. Bleakley, 69 N.Y.2d 490).
Defendant's motion to suppress identification testimony was properly denied, without a hearing, because the People established a mutual relationship (People v. Rodriguez, 79 N.Y.2d 445, 449-450, 453) between the witness and defendant, to wit, that the witness was defendant's drug customer, and saw defendant three or four times a day for more than one year prior to the incident, and furnished the police with defendant's nickname, prior to the "confirmatory" photo identification.
The court gave a suitable curative instruction, and properly denied a mistrial, when the witness inadvertently violated the court's ruling that defendant's drug dealing not be mentioned (People v. Young, 48 N.Y.2d 995). Likewise, the court properly denied defendant's motion to set aside the verdict, made on similar grounds, and properly rejected defendant's attempt to use a juror's affidavit to impeach the verdict as to the "tenor of its deliberations" (People v. Brown, 48 N.Y.2d 388, 393).
Defendant was not entitled to a missing witness charge with respect to a witness for the People whose testimony would have been hearsay (see, People v. McDaniel, 81 N.Y.2d 10, 18-20).
Finally, defendant's motion to dismiss for unconstitutional pre-arrest delay was properly denied, after a hearing, in which the court found neither bad faith by the police nor prejudice to defendant (People v. Taranovich, 37 N.Y.2d 442, 445).
Concur — Sullivan, J.P., Rosenberger, Kupferman and Ross, JJ.