PEOPLE v. BYRD

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

The PEOPLE of the State of New York, Respondent, v. Herbert BYRD, Defendant-Appellant.

Decided: June 19, 2001

SULLIVAN, P.J., NARDELLI, ELLERIN, BUCKLEY and MARLOW, JJ. Frank Glaser, for Respondent. Richard Joselman, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Dorothy Cropper, J.), rendered June 25, 1998, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously affirmed.

 The court properly exercised its discretion in imposing reasonable limitations on defendant's questioning of prospective jurors during voir dire (People v. Boulware, 29 N.Y.2d 135, 140, 324 N.Y.S.2d 30, 272 N.E.2d 538, cert. denied 405 U.S. 995, 92 S.Ct. 1269, 31 L.Ed.2d 463).   Defendant was not prevented from pursuing any substantively relevant lines of inquiry (compare, People v. Porter, 226 A.D.2d 275, 641 N.Y.S.2d 283).   The precluded inquiries were generally improper in form (see, People v. Hernandez, 276 A.D.2d 274, 713 N.Y.S.2d 875, lv. denied 95 N.Y.2d 964, 722 N.Y.S.2d 482, 745 N.E.2d 402), particularly when they constituted open-ended invitations to the panelists to relate anecdotes, factual information and opinions concerning their attitudes towards drug trafficking and law enforcement.

 The court properly precluded impeachment of two police witnesses concerning their omission of certain facts from their testimony before the Grand Jury and at the first trial in this case, since defendant failed to lay a proper foundation for such impeachment (see, People v. Bornholdt, 33 N.Y.2d 75, 88, 350 N.Y.S.2d 369, 305 N.E.2d 461, cert. denied sub nom Victory v. New York, 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 109;  People v. Ortiz, 250 A.D.2d 372, 672 N.Y.S.2d 327, lv. denied 92 N.Y.2d 881, 678 N.Y.S.2d 28, 700 N.E.2d 566).   The present appellate record fails to establish that the omissions here fell within the category of “unnatural” omissions admissible under People v. Savage (50 N.Y.2d 673, 431 N.Y.S.2d 382, 409 N.E.2d 858).

To the extent that defendant is raising constitutional claims with respect to the above issues, such claims are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.

 We perceive no basis for reduction of sentence.