| People v Mathis |
| 2008 NY Slip Op 07688 [55 AD3d 628] |
| October 7, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AnthonyMathis, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and StevenA. Mann of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers, J.),rendered May 5, 2005, convicting him of criminal sale of a controlled substance in the second degree(two counts), criminal sale of a controlled substance in the third degree (three counts), criminalpossession of a controlled substance in the third degree, criminal possession of a controlled substancein the fifth degree, and conspiracy in the second degree, upon a jury verdict, and imposing sentence.The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibusmotion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the photographic array from which the undercoverdetective identified him was not unduly suggestive (see People v Killimayer, 40 AD3d 1118, 1119 [2007]; People vMack, 243 AD2d 731, 731-732 [1997]). As the photographic array was not unduly suggestive,the People were not required to establish an independent source for the detective's in-courtidentification of the defendant (see People v Burts, 78 NY2d 20, 24 [1991]; People vChipp, 75 NY2d 327, 335 [1990], cert denied 498 US 833 [1990]; People v Fisher,199 AD2d 279, 280 [1993]).
The defendant's challenge to the Supreme Court's Sandoval ruling (see People vSandoval, 34 NY2d 371 [1974]) is also without merit. The Supreme Court properly weighed theprobative value of the defendant's prior convictions on the issue of his credibility against the possibleprejudice to him, and reached an appropriate compromise ruling (see People v Dudley, 52 AD3d 840 [2008]; People v [*2]Rodriguez, 51 AD3d 950 [2008]).
The defendant's challenges to the legal sufficiency of the evidence supporting his conviction ofcriminal sale of a controlled substance in the second degree committed on January 10, 2003, criminalpossession of a controlled substance in the third degree committed on April 9, 2003, and conspiracy inthe second degree committed between November 1, 2002, and April 9, 2003, are unpreserved forappellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]). Inany event, viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant's guilt ofthose crimes beyond a reasonable doubt. Moreover, upon the exercise of our factual review power(see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of theevidence (see People v Romero, 7NY3d 633, 644-645 [2006]).
Finally, the defendant's contention that some of the prosecutor's summation comments wereimproper is unpreserved for appellate review (see CPL 470.05 [2]; People v Tonge,93 NY2d 838, 839-840 [1999]). In any event, although some of the challenged remarks wereimproper (see People v Ashwal, 39 NY2d 105 [1976]; People v Marte, 207 AD2d314, 317 [1994]), they did not deprive the defendant of a fair trial and, therefore, do not warrantreversal of the judgment in the exercise of our interest of justice jurisdiction (see People v Joseph, 20 AD3d 435[2005]; People v Oglesby, 7 AD3d736 [2004]). Spolzino, J.P., Ritter, Santucci and Carni, JJ., concur.