PEOPLE v. BRAZEAU (2003)

On appeal from a judgment convicting him following a jury trial of robbery in the second degree (Penal Law § 160.10[2] ) and assault in the second degree (§ 120.05[6] ), defendant contends, inter alia, that County Court erred in permitting the prosecutor to cross-examine him on his use of 26 aliases because he had not received notice of the People's intent to use such evidence to impeach him and the evidence had not been ruled admissible during the Sandoval conference.   For the reasons that follow, we reject that contention.

The prosecutor and defendant, who was representing himself, agreed on a Sandoval compromise whereby the prosecutor would ask defendant if he had been convicted of “at least one felony.”   When the prosecutor began to cross-examine defendant about his name, defendant objected on the ground that the use of alias evidence had not been discussed during the limited Sandoval conference.   The court, citing People v. Walker, 83 N.Y.2d 455, 611 N.Y.S.2d 118, 633 N.E.2d 472, ruled that a pretrial determination of the admissibility of such evidence was not mandatory and permitted the prosecutor to ask defendant whether he had ever used a false name and, if so, how many times.   In Walker, 83 N.Y.2d at 464 n. 2, 611 N.Y.S.2d 118, 633 N.E.2d 472, the Court of Appeals noted that the parties had chosen to litigate the admissibility of alias evidence in the context of a Sandoval hearing and thus the Court “ha[d] no occasion to consider whether a similar procedure is mandatory in all cases.”   We conclude that a similar procedure with respect to the use of alias evidence is not mandatory, and that the trial court did not abuse its discretion in permitting the limited questioning at issue here.

 “Defendants who take the stand, like all other witnesses, place their credibility in issue, and thus may be cross-examined” with respect to prior conduct that affects their credibility (People v. Bennett, 79 N.Y.2d 464, 468, 583 N.Y.S.2d 825, 593 N.E.2d 279).   Prior to the Court of Appeals' decision in People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413, defendants had no right to an advance ruling on the scope of cross-examination.   The right that has emerged from Sandoval and its progeny, i.e., the right to a pretrial ruling on the permissible scope of cross-examination concerning the prior “criminal, vicious or immoral acts” of defendants, is designed to safeguard the right of defendants to testify on their own behalf (Sandoval, 34 N.Y.2d at 375, 357 N.Y.S.2d 849, 314 N.E.2d 413).   In Sandoval the Court noted, however, that the pretrial determination might not be necessary “in all cases” (Sandoval, 34 N.Y.2d at 375, 357 N.Y.S.2d 849, 314 N.E.2d 413), although it expressed a clear preference for advance rulings that has since become absolute, or nearly so, where evidence of criminal, vicious or immoral acts is concerned (see id.;   see e.g. Bennett, 79 N.Y.2d at 468, 583 N.Y.S.2d 825, 593 N.E.2d 279).

The reason for requiring a pretrial ruling on the admissibility of prior criminal, vicious or immoral conduct for impeachment purposes is the “particular prejudice” that such evidence may produce (Walker, 83 N.Y.2d at 459, 611 N.Y.S.2d 118, 633 N.E.2d 472).   The “ ‘thrust of Sandoval is that * * * a jury may be led by such evidence * * * to infer criminal propensity’ ” (id.).   That is not the case with alias evidence.   In Walker the Court recognized the distinction between alias evidence, which “carries no additional implication other than the natural one of propensity for untruthfulness (provided, of course, that it is not used in such a way as to suggest the existence of otherwise unadmitted prior encounters with law enforcement authorities),” and prior crime evidence, and stated that “there is nothing inherent in alias evidence that suggests a need for extraordinary caution” (id. at 463, 611 N.Y.S.2d 118, 633 N.E.2d 472).   The Court thus determined that “no specialized treatment is required beyond the ordinary principles of common sense and fairness that typically inform trial court discretion” (id.).

 We conclude that the admissibility of alias evidence to impeach a defendant need not be determined at a pretrial Sandoval hearing, and we further conclude that, under the circumstances of this case, the court did not abuse its discretion in permitting two limited questions about defendant's use of false names without the benefit of an advance ruling.  “[T]he scope of cross-examination is within the sound discretion of the trial court” (People v. Baker, 294 A.D.2d 888, 889, 742 N.Y.S.2d 749, lv. denied 98 N.Y.2d 708, 749 N.Y.S.2d 5, 778 N.E.2d 556;  see People v. Snell, 234 A.D.2d 986, 652 N.Y.S.2d 455, lv. denied 89 N.Y.2d 1015, 658 N.Y.S.2d 254, 680 N.E.2d 628).

 The further contention of defendant that he was entitled to notice of the alias evidence pursuant to CPL 240.43 is not preserved for our review because defendant failed to object to the questions concerning his use of aliases on that ground at trial (see 470.05[2];  People v. Hamilton, 247 A.D.2d 630, 672 N.Y.S.2d 743, lv. denied 91 N.Y.2d 1008, 676 N.Y.S.2d 136, 698 N.E.2d 965;  People v. Locks, 184 A.D.2d 374, 375, 587 N.Y.S.2d 141, lv. denied 80 N.Y.2d 975, 591 N.Y.S.2d 144, 605 N.E.2d 880).   We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see 470.15[6][a] ).

 Contrary to the contention of defendant, the court did not err either in permitting the victim to identify him at trial or in denying his request for alternative identification procedures (see People v. Spirles, 275 A.D.2d 980, 981-982, 713 N.Y.S.2d 434, lv. denied 96 N.Y.2d 807, 726 N.Y.S.2d 385, 750 N.E.2d 87).  “In cases where there has been no pretrial identification procedure and the defendant is identified in court for the first time, the defendant is not deprived of a fair trial because [defendant] is able to explore weaknesses and suggestiveness of the identification in front of the jury” (People v. Medina, 208 A.D.2d 771, 772, 617 N.Y.S.2d 491, lv. denied 84 N.Y.2d 1035, 623 N.Y.S.2d 191, 647 N.E.2d 463;  see also People v. Quinney, 305 A.D.2d 1044, 760 N.Y.S.2d 786, 2003 WL 2009047 [May 2, 2003];  People v. Morales, 228 A.D.2d 704, 644 N.Y.S.2d 976, lv. denied 88 N.Y.2d 1070, 651 N.Y.S.2d 414, 674 N.E.2d 344).

 We further conclude that defendant was not denied a fair trial by a delay in disclosing alleged Brady material inasmuch as defendant received a meaningful opportunity to use that material at trial (see People v. Middlebrooks, 300 A.D.2d 1142, 1143-1144, 752 N.Y.S.2d 759;  see also People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349).   Contrary to the further contention of defendant, he was not denied a fair trial by prosecutorial misconduct.   Defendant failed to object to most of the challenged statements and thus failed to preserve his contentions with respect to those statements for our review (see CPL 470.05[2] ).   In any event, although the prosecutor improperly stated that defendant “lied” to certain witnesses (see People v. Fiori, 262 A.D.2d 1081, 693 N.Y.S.2d 357;  People v. Dunn, 158 A.D.2d 941, 551 N.Y.S.2d 432, lv. denied 76 N.Y.2d 734, 558 N.Y.S.2d 896, 557 N.E.2d 1192), that isolated statement was not so egregious as to deprive defendant of a fair trial (see People v. Rubin, 101 A.D.2d 71, 77-78, 474 N.Y.S.2d 348, lv. denied 63 N.Y.2d 711, 480 N.Y.S.2d 1038, 469 N.E.2d 114;  see also People v. Adams, 247 A.D.2d 819, 820, 668 N.Y.S.2d 844, lv. denied 91 N.Y.2d 1004, 676 N.Y.S.2d 132, 698 N.E.2d 961, 91 N.Y.2d 1008, 676 N.Y.S.2d 136, 698 N.E.2d 965).

 Defendant also failed to preserve for our review his contention that the court's initial charge to the jury was erroneous (see People v. Procks, 258 A.D.2d 951, 952, 685 N.Y.S.2d 543, lv. denied 93 N.Y.2d 976, 695 N.Y.S.2d 63, 716 N.E.2d 1108).   In any event, we conclude that the charge as a whole adequately conveyed the appropriate standards to the jury (see People v. Adams, 69 N.Y.2d 805, 806, 513 N.Y.S.2d 381, 505 N.E.2d 946).   We further conclude that the court gave a meaningful response to the jury's request for a readback of testimony (see People v. Murray, 258 A.D.2d 936, 936-937, 685 N.Y.S.2d 876, lv. denied 93 N.Y.2d 927, 693 N.Y.S.2d 511, 715 N.E.2d 514) and did not abuse its discretion in evaluating the jury's request and framing the response (see People v. Malloy, 55 N.Y.2d 296, 302, 449 N.Y.S.2d 168, 434 N.E.2d 237, cert. denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93).   The court also properly limited defendant's cross-examination of a prosecution witness to prevent the witness from rendering an opinion on ultimate issues of fact to be determined by the jury (see generally People v. Ciaccio, 47 N.Y.2d 431, 438-439, 418 N.Y.S.2d 371, 391 N.E.2d 1347).

We have reviewed the remaining contentions raised in defendant's pro se supplemental brief and conclude that they are without merit.

Accordingly, we conclude that the judgment should be affirmed.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

PINE, J.P.