PEOPLE v. ANDREW

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. John ANDREW, Defendant-Appellant.

Decided: September 23, 2008

LIPPMAN, P.J., TOM, WILLIAMS, McGUIRE, FREEDMAN, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Anastasia Heeger of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Alan Gadlin of counsel), for respondent.

Judgment, Supreme Court, New York County (Arlene R. Silverman, J.), rendered February 13, 2007, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4 1/212 years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).   There is no basis for disturbing the jury's determinations concerning credibility, including its resolution of the minor inconsistencies in testimony that defendant cites.

 The court properly exercised its discretion when it denied defendant's request to question the arresting detective regarding certain federal lawsuits, and when it declined to disclose, or review in camera, the detective's disciplinary file.   The detective was one of several officers named as defendants in two actions, principally against the City of New York, that involved a single incident that occurred one year before the incident at issue in this case.   The mere existence of the federal litigation was not a proper subject for cross-examination (see People v. Antonetty, 268 A.D.2d 254, 701 N.Y.S.2d 362 [2000], lv. denied 94 N.Y.2d 945, 710 N.Y.S.2d 1, 731 N.E.2d 618 [2000] ), and the defense failed to establish a good faith basis for eliciting the underlying facts as prior bad acts (see id.), as the complaints and amended complaints in the federal actions did not allege, or even support an inference, that this detective personally engaged in any specific misconduct or acted with knowledge of the misconduct of other officers.   There is also no evidence that the detective intentionally misled anyone about his involvement in the federal case;  accordingly, this was neither a proper subject for an inquiry in itself, nor a basis for any other inquiry.   Similarly, defendant failed to make a sufficient showing to warrant disclosure or in camera review of the detective's disciplinary record (see Civil Rights Law § 50-a[2];  People v. Gissendanner, 48 N.Y.2d 543, 548-551, 423 N.Y.S.2d 893, 399 N.E.2d 924 [1979] ).   In any event, any error in failing to permit cross-examination based on the federal litigation or to review the disciplinary records was harmless, as the People's case rested primarily on the testimony of an undercover officer, and the arresting detective at issue primarily testified to facts confirmed by defendant's own testimony.

 The court also properly exercised its discretion when it precluded defendant from calling his girlfriend to give testimony that would have been cumulative to other testimony, of dubious relevance to any material issue at trial, and of little, if any, probative value (see People v. Hector, 248 A.D.2d 184, 670 N.Y.S.2d 764 [1998], lv. denied 92 N.Y.2d 898, 680 N.Y.S.2d 62, 702 N.E.2d 847 [1998] ).   We also find that any error in precluding the witness's testimony was harmless.

 The court also properly exercised its discretion when it precluded defense counsel from arguing in summation that the jury should draw a negative inference from the People's failure to call additional police officers to testify, as there is no reason to believe that any uncalled officers were in a position to see the drug transaction, or were otherwise able to provide any relevant testimony (see People v. Vasquez, 288 A.D.2d 17, 732 N.Y.S.2d 218 [2001], lv. denied 97 N.Y.2d 734, 740 N.Y.S.2d 708, 767 N.E.2d 165 [2002] ).

Defendant failed to preserve his constitutional arguments with regard to the above-discussed issues (see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006];  People v. Green, 27 A.D.3d 231, 233, 810 N.Y.S.2d 188 [2006], lv. denied 6 N.Y.3d 894, 817 N.Y.S.2d 629, 850 N.E.2d 676 [2006] ), or any of his claims concerning the court's alleged interference with the presentation of the defense case, and we decline to review them in the interest of justice.   As an alternative holding, we also reject them on the merits.