Opinion
September 12, 1991
Appeal from the Supreme Court, New York County (Allen G. Alpert, J.).
Defendant was arrested as part of a buy-and-bust operation. The People's evidence showed that an undercover police officer approached a co-defendant, who in turn pointed to defendant. When the officer asked for "two nickles", defendant spat two plastic vials of cocaine from his mouth, which he exchanged for pre-recorded buy money. Defendant was arrested by the back up team and identified by the undercover officer.
Defendant contends that the trial court improperly denied his request to testify, which was made after summations and during the court's charge to the jury. The order of proof, as set forth in CPL 260.30, may be varied by the trial court "in its discretion in furtherance of justice" (People v. Benham, 160 N.Y. 402, 437). Nevertheless, "the order of trial prescribed by statute should be followed unless there is a showing of a compelling reason for a variation" (People v. Theriault, 75 A.D.2d 971). Here, the refusal to reopen the trial was not an abuse of discretion (see, People v. Munoz, 153 A.D.2d 281), nor are the circumstances presented analogous to those presented in People v Washington ( 71 N.Y.2d 916), where the defendant requested to testify after summations but before the charge.
We similarly find no abuse of discretion in sentencing defendant. The mere fact that defendant was offered a lighter sentence during plea bargaining than the one actually imposed does not establish that defendant was penalized for going to trial (see, People v. Pena, 50 N.Y.2d 400, cert denied 449 U.S. 1087). Nor is there any requirement that all the participants in the crime be given identical sentences, since the court must consider factors such as defendant's actual involvement and background in determining sentence (People v. Danny G., 61 N.Y.2d 169, 174).
Concur — Carro, J.P., Wallach, Kupferman and Smith, JJ.