| People v Rosenberg |
| 2013 NY Slip Op 01162 [103 AD3d 531] |
| February 21, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v William Rosenberg, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), forrespondent.
Judgment, Supreme Court, New York County (Roger S. Hayes, J.), renderedDecember 22, 2009, as amended January 19, 2010, convicting defendant, after a jurytrial, of assault in the second degree, and sentencing him to a term of three years,unanimously affirmed.
The court's Sandoval ruling balanced the appropriate factors and was aproper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). Thecourt properly exercised its discretion when it precluded inquiry into one of defendant'sconvictions and permitted inquiry into the underlying facts of a theft-related crime. Theunderlying theft-related crime was probative of defendant's credibility, and it was not sosimilar to the present charges as to be unduly prejudicial.
An isolated phrase in the prosecutor's summation that briefly mentioned defendant'sright to call witnesses was inappropriate, but it does not warrant reversal. The court'sinstructions on the burden of proof were sufficient to prevent any prejudice.
Defendant's contention that the victim's identification of defendant was improperlybolstered by an officer's testimony about the identification is unpreserved, and we declineto review in the interest of justice. As an alternative holding, we find that it was defensecounsel, not the prosecutor, who elicited the testimony and that the testimony wasadmissible in any event [*2]as background evidence,completing the narrative (see People v Morgan, 193 AD2d 467 [1st Dept 1993],lv denied 81 NY2d 1077 [1993]). Concur—Friedman, J.P., Sweeny,Renwick, Freedman and Román, JJ.