People
v.
Martinez

Appellate Division of the Supreme Court of New York, First DepartmentApr 1, 1997
238 A.D.2d 126 (N.Y. App. Div. 1997)
238 A.D.2d 126656 N.Y.S.2d 11

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April 1, 1997


Judgment, Supreme Court, New York County (Paul Bookson, J.), rendered April 12, 1994, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him to a term of 3 1/3 to 10 years, unanimously affirmed.

Defendant was not deprived of a fair trial by the complainant's testimony concerning his fear of encountering defendant or defendant's associates while in custody, or by the prosecutor's summation comments on this subject, because defendant opened the door to these matters on his cross-examination of the complainant as well as on his summation ( see, People v. Melendez, 55 N.Y.2d 445). The court properly declined to grant the drastic remedy of a mistrial, which was the only remedy requested by defendant ( see, People v. Rice, 75 N.Y.2d 929, 932-933), and, contrary to defendant's current argument, was under no obligation to deliver a curative instruction, sua sponte. Furthermore, the court properly precluded defendant from eliciting, through a police witness, defendant's lack of a prior criminal record. Defendant's remaining arguments in this regard are without merit.

The court properly denied defendant's motion to suppress identification testimony, without a hearing, based on the facts before it.

We perceive no abuse of sentencing discretion.

Concur — Milonas, J.P., Wallach, Nardelli and Tom, JJ.