| People v McGhee |
| 2015 NY Slip Op 01565 [125 AD3d 537] |
| February 24, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Isma McGhee, Also Known as Izzy,Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sylvia Wertheimer of counsel),for respondent.
Judgment, Supreme Court, New York County (Patricia Nunez, J.), rendered January3, 2013, convicting defendant, after a jury trial, of 10 counts of criminal sale of acontrolled substance in the third degree, and sentencing him, as a second felony drugoffender whose prior felony conviction was a violent felony, to concurrent terms of 12years, unanimously affirmed.
The court properly exercised its discretion in denying defendant's request to questiona detective regarding certain federal lawsuits in which the detective was one of thenamed defendants, and the court's ruling did not deprive defendant of his right toconfront witnesses and present a defense (see Delaware v Van Arsdall, 475 US673, 678-679 [1986]). Defendant failed to establish a good faith basis for eliciting theunderlying facts of these lawsuits under the theory that they involved prior bad acts bythis detective bearing on his credibility (see People v Andrew, 54 AD3d 618 [1st Dept 2008], lvdenied 11 NY3d 895 [2008]; see also People v Smith, 122 AD3d 456 [1st Dept 2014]),as defendant did not specify any factual allegations supporting the assertion that thisdetective had participated in false arrests. In any event, any error in precludingcross-examination based on the federal litigation was harmless, because the People's caserested primarily on the credibility and reliability of the testimony of the undercoverofficers who made the charged drug purchases, not on that of this detective, whosupervised the case and provided an overview of the investigation (see Andrew,54 AD3d at 619).
The court properly exercised its discretion in ruling that defendant's impeachment ofthe detective regarding a discrepancy in a document prepared by him opened the door toevidence of the detective's knowledge of defendant's involvement in uncharged sales thatwere part of the same investigation (see generally People v Mateo, 2 NY3d 383,425 [2004]; People v Rojas, 97 NY2d 32, 38 [2001]). This evidence tended todispel a misleading impression that the discrepancy reflected the actual state of thedetective's knowledge, as opposed to being a paperwork error. Since this evidence wasnot offered for its truth, but as evidence of the detective's state of mind, defendant'shearsay and Confrontation Clause arguments are unavailing. In addition, we find that thisevidence was not unduly prejudicial under the circumstances of the case.
[*2] The court properly denied defendant's motion tosuppress a photographic identification. The record supports the court's finding that thephoto array was not unduly suggestive, since defendant and the other participants werereasonably similar in appearance. The difference between defendant's photo and the otherphotos was not sufficient to create a substantial likelihood that defendant would besingled out for identification (see People v Chipp, 75 NY2d 327, 336 [1990],cert denied 498 US 833 [1990]).
The sentencing court properly adjudicated defendant a second felony drug offenderwhose prior felony conviction was a violent felony. Defendant's conviction of criminalpossession of a weapon in the third degree qualifies as a violent felony, and defendant'sarguments to the contrary are similar to arguments this Court has previously rejected (see People v Thomas, 122AD3d 489 [1st Dept 2014]; People v Bowens, 120 AD3d 1148 [1st Dept 2014]).
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Renwick,Andrias, Richter and Gische, JJ.