Opinion
705, 706
April 3, 2003.
Judgments, Supreme Court, New York County (Ronald Zweibel, J.), rendered August 14, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree (three counts), criminal possession of a controlled substance in the third degree, and bail jumping in the first degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years on the controlled substance convictions and a consecutive term of 2 to 4 years on the bail jumping conviction, unanimously affirmed.
Deborah L. Morse, for respondent.
Beth S. Lyons, for defendant-appellant.
Before: Mazzarelli, J.P., Sullivan, Lerner, Friedman, Gonzalez, JJ.
The trial court properly exercised its discretion when, in ruling upon defendant's Sandoval motion, it permitted inquiry by the People as to a few of defendant's numerous prior convictions and bench warrants (see e.g. People v. Hayes, 97 N.Y.2d 203, 206-207; People v. Perez, 246 A.D.2d 335, 336, lv denied 91 N.Y.2d 1011).
The photographs taken from the police officer's observation post with a lens replicating the degree of magnification provided by the officer's binoculars "were relevant to illustrate the officer's ability to observe the sale and the power of his binoculars" (People v. Rodriguez, 278 A.D.2d 99, 100, lv denied 96 N.Y.2d 787) and did not require authentication by the photographer (People v. Johnson, 279 A.D.2d 294,lv denied 96 N.Y.2d 830).
The photograph of the codefendant on the drug charges was relevant to show that the police officers' description of the co-defendant was accurate. Inasmuch as the sole purpose of the photograph was not to arouse the emotions of the jury and prejudice defendant, its exclusion was not required (see People v. Pobliner, 32 N.Y.2d 356, 370, cert denied 416 U.S. 905). The photograph did not prejudice defendant by implying that he associated with criminals; because it was from the very incident at issue, it did not imply that the codefendant had a prior criminal record (see People v. McCorkel, 164 A.D.2d 799).
The trial court did not err when it exercised its discretion to permit the undercover officer to explain on rebuttal why he was observing defendant, even if that testimony implied that defendant was engaged in another drug transaction (see People v. Blakeney, 219 A.D.2d 10, affd 88 N.Y.2d 1011).
Defendant's argument that he was denied a fair trial because of the People's cross-examination is unpreserved, and we decline to consider it in the interest of justice. Were we to reach it, we would find that the People did not gratuitously attack defendant's lifestyle, mischaracterize the defense, or denigrate defendant.
Defendant was not denied a fair trial because of the People's summation. While defendant did not directly accuse the police of lying, he did ask the jury to weigh the credibility of his version and the police version of events. The prosecutor's summation response to this thinly veiled challenge to the credibility of her witnesses did not exceed the bounds of propriety (see e.g. People v. Overlee, 236 A.D.2d 133, 136, 143-144, lv denied 91 N.Y.2d 976; People v. D'Alessandro, 184 A.D.2d 114, 119, lv denied 81 N.Y.2d 884, and see People v. Gibbs, 207 A.D.2d 739, lv denied 84 N.Y.2d 935). Contrary to defendant's contentions, the People, in closing, did not blame defendant for the loss of certain evidence, nor did they mischaracterize the defense or denigrate defendant.
We have considered defendant's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.