Opinion
November 18, 1999
Ashley G. Marsh, for respondent.
L. Jeffrey Norwalk, for defendant-appellant.
WILLIAMS, J.P., RUBIN, SAXE, FRIEDMAN, JJ.
Judgment, Supreme Court, Bronx County (George Covington, J.), rendered January 19, 1995, convicting defendant, after a jury trial, of robbery in the first degree and criminal possession of stolen property in the fifth degree, and sentencing him, as a second violent felony offender, to concurrent terms of 12+ to 25 years and 1 year, respectively, unanimously affirmed.
The court properly exercised its discretion in precluding defendant from introducing into evidence two purported prior inconsistent statements of the complainant. Under the circumstances surrounding each document, the alleged inconsistency could not be attributed to the complainant (see, People v. Reed, ___ A.D.2d ___, 685 N.Y.S.2d 2). In any event, these rulings could not have caused any prejudice because defendant was still able to explore the alleged inconsistencies thoroughly without introducing the documents themselves (see, People v. Piazza, 48 N.Y.2d 151, 164;People v. Messier, 191 A.D.2d 819, lv denied 81 N.Y.2d 1017; People v. Fortunato, 191 A.D.2d 221, 222, lv denied 81 N.Y.2d 1013).
The court's Sandoval ruling was erroneous to the extent that it permitted the People to ask defendant whether he was convicted of robbery in a case where, as pointed out by defense counsel, defendant was actually adjudicated a youthful offender, since only the underlying facts of that case were admissible. However, we find the error to be harmless (see, People v. Shields, 46 N.Y.2d 764). The remainder of the Sandoval ruling balanced the proper factors and was a proper exercise of discretion (see, People v. Walker, 83 N.Y.2d 455, 459).
Defendant's suppression motion was properly denied. The record supports the court's finding that the lineup was not impermissibly suggestive. Since a photograph of the lineup was reviewed by the hearing court, the loss of the photograph sometime after the trial does not create a presumption of suggestiveness (People v. Edmonds, 223 A.D.2d 455, lv denied 88 N.Y.2d 984). We have considered and rejected defendant's other contentions regarding the Wade issues.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.