| People v Andrew |
| 2008 NY Slip Op 07035 [54 AD3d 618] |
| September 23, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JohnAndrew, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Alan Gadlin of counsel), forrespondent.
Judgment, Supreme Court, New York County (Arlene R. Silverman, J.), rendered February13, 2007, convicting defendant, after a jury trial, of criminal sale of a controlled substance in thethird degree and criminal possession of a controlled substance in the third degree, and sentencinghim, as a second felony offender, to concurrent terms of 4½ years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's determinations concerning credibility, including its resolution ofthe minor inconsistencies in testimony that defendant cites.
The court properly exercised its discretion when it denied defendant's request to question thearresting detective regarding certain federal lawsuits, and when it declined to disclose, or reviewin camera, the detective's disciplinary file. The detective was one of several officers named asdefendants in two actions, principally against the City of New York, that involved a singleincident that occurred one year before the incident at issue in this case. The mere existence of thefederal litigation was not a proper subject for cross-examination (see People v Antonetty,268 AD2d 254 [2000], lv denied 94 NY2d 945 [2000]), and the defense failed toestablish a good faith basis for eliciting the underlying facts as prior bad acts (see id.), asthe complaints and amended complaints in the federal actions did not allege, or even support aninference, that this detective personally engaged in any specific misconduct or acted withknowledge of the misconduct of other officers. There is also no evidence that the detectiveintentionally misled anyone about his involvement in the federal case; accordingly, this wasneither a proper subject for an inquiry in itself, nor a basis for any other inquiry. Similarly,defendant failed to make a sufficient showing to warrant disclosure or in camera review of thedetective's disciplinary record (see Civil Rights Law § 50-a [2]; People vGissendanner, 48 NY2d 543, 548-551 [1979]). In any event, any error in failing to permitcross-examination based on the federal litigation or to review the disciplinary records washarmless, as the People's case rested primarily on the testimony of an undercover officer, and thearresting detective at issue primarily testified to facts confirmed by defendant's own testimony.
The court also properly exercised its discretion when it precluded defendant from calling[*2]his girlfriend to give testimony that would have beencumulative to other testimony, of dubious relevance to any material issue at trial, and of little, ifany, probative value (see People v Hector, 248 AD2d 184 [1998], lv denied 92NY2d 898 [1998]). We also find that any error in precluding the witness's testimony washarmless.
The court also properly exercised its discretion when it precluded defense counsel fromarguing in summation that the jury should draw a negative inference from the People's failure tocall additional police officers to testify, as there is no reason to believe that any uncalled officerswere in a position to see the drug transaction, or were otherwise able to provide any relevanttestimony (see People v Vasquez, 288 AD2d 17 [2001], lv denied 97 NY2d 734[2002]).
Defendant failed to preserve his constitutional arguments with regard to the above-discussedissues (see People v Lane, 7 NY3d888, 889 [2006]; People vGreen, 27 AD3d 231, 233 [2006], lv denied 6 NY3d 894 [2006]), or any of hisclaims concerning the court's alleged interference with the presentation of the defense case, andwe decline to review them in the interest of justice. As an alternative holding, we also reject themon the merits. Concur—Lippman, P.J., Tom, Williams, McGuire and Freedman, JJ.