PEOPLE v. MATHIS (2008)

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), criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in 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 omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the photographic array from which the undercover detective identified him was not unduly suggestive (see People v. Killimayer, 40 A.D.3d 1118, 1119, 837 N.Y.S.2d 288;  People v. Mack, 243 A.D.2d 731, 731-732, 665 N.Y.S.2d 529).   As the photographic array was not unduly suggestive, the People were not required to establish an independent source for the detective's in-court identification of the defendant (see People v. Burts, 78 N.Y.2d 20, 24, 571 N.Y.S.2d 418, 574 N.E.2d 1024;  People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70;  People v. Fisher, 199 A.D.2d 279, 280, 604 N.Y.S.2d 223).

The defendant's challenge to the Supreme Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) is also without merit.   The Supreme Court properly weighed the probative value of the defendant's prior convictions on the issue of his credibility against the possible prejudice to him, and reached an appropriate compromise ruling (see People v. Dudley, 52 A.D.3d 840, 859 N.Y.S.2d 376;  People v. Rodriguez, 51 A.D.3d 950, 860 N.Y.S.2d 540).

 The defendant's challenges to the legal sufficiency of the evidence supporting his conviction of criminal sale of a controlled substance in the second degree committed on January 10, 2003, criminal possession of a controlled substance in the third degree committed on April 9, 2003, and conspiracy in the second degree committed between November 1, 2002, and April 9, 2003, are unpreserved for appellate review (see CPL 470.05 [2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of those 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 the evidence (see People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 Finally, the defendant's contention that some of the prosecutor's summation comments were improper is unpreserved for appellate review (see CPL 470.05[2];  People v. Tonge, 93 N.Y.2d 838, 839-840, 688 N.Y.S.2d 88, 710 N.E.2d 653).   In any event, although some of the challenged remarks were improper (see People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564;  People v. Marte, 207 A.D.2d 314, 317, 615 N.Y.S.2d 678), they did not deprive the defendant of a fair trial and, therefore, do not warrant reversal of the judgment in the exercise of our interest of justice jurisdiction (see People v. Joseph, 20 A.D.3d 435, 797 N.Y.S.2d 310;  People v. Oglesby, 7 A.D.3d 736, 776 N.Y.S.2d 838).