People v. Artis

• Decision Date: 17 October 1996
• Citation: 232 A.D.2d 729,648 N.Y.S.2d 722
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert ARTIS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 722

648 N.Y.S.2d 722

232 A.D.2d 729

The PEOPLE of the State of New York, Respondent, v. Robert ARTIS, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 17, 1996.

Cliff Gordon, Monticello, for appellant.

Stephen F. Lungen, District Attorney (Bonnie M. Mitzner, of counsel), Monticello, for respondent.

Before MIKOLL, J.P., and MERCURE, PETERS, SPAIN and CARPINELLO, JJ.

CARPINELLO, Justice.

Appeal from a judgment of the County Court of Sullivan County (Kane, J.), rendered January 6, 1994, upon a verdict convicting defendant of two counts of the crime of criminal sale of a controlled substance in the third degree.

Defendant was convicted of two counts of the crime of criminal sale of a controlled substance in the third degree after trial and was sentenced to two concurrent 12 1/2 to 25-year terms of imprisonment, to run consecutively with a sentence that he was already serving. Defendant's conviction arose out of two separate transactions that took place on Main Street in the Village of Fallsburg, Sullivan County. On November 10, 1992, defendant sold a quantity of cocaine to an undercover State Police Investigator. At the time, the officer was wearing a wire and another police officer observed the transaction and heard the broadcast transmission. On November 23, 1992, defendant sold a quantity of cocaine to a second State Police Investigator. This investigator was also wearing a wire, and the sale was observed by another police officer who partially heard the transmission.

Defendant contends that he was deprived of a fair trial by several allegedly improper comments made by the prosecutor during his summation. Defense counsel failed to object to the prosecution's statement that the role of defense counsel was to cloud the picture of defendant's guilt; therefore, this claim is unpreserved for appellate review (see, People v. Dawson, 50 N.Y.2d 311, 324, 428 N.Y.S.2d 914, 406 N.E.2d 771). Defendant failed to object to the allegedly improper bolstering of police witnesses during the summation at the time that this objection could have been addressed most readily (see, People v. Michael, 48 N.Y.2d 1, 6, 420 N.Y.S.2d 371, 394 N.E.2d 1134), though defense counsel later moved for a mistrial on this ground. The bulk of the prosecutor's comments regarding the credibility of the police officers constituted fair comment on the evidence (see, People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564). Although there was no basis in the record for the prosecutor's comment that the police officers who testified at defendant's trial did not have criminal records, the prosecutor did not inject his own credibility into the case (see, People v. Paperno, 54 N.Y.2d 294, 300-301, 445 N.Y.S.2d 119, 429 N.E.2d 797). This minor departure from the evidence at trial did not prejudice defendant and certainly was not the basis for a mistrial. The remainder of defendant's claims regarding improper comments during the summation were the subject of curative instructions that eliminated the possibility of prejudice to defendant (see, People v. Roberts, 103 A.D.2d 975, 976, 479 N.Y.S.2d 834, affd. 64 N.Y.2d 854, 487 N.Y.S.2d 324, 476 N.E.2d 650). In any event, because defense counsel failed to take exceptions to any of County Court's curative instructions, the balance of defendant's objections to the summation are not preserved for our review (see, People v. Dawson, supra, at 316, 428 N.Y.S.2d 914, 406 N.E.2d 771).

County Court properly permitted the People to elicit testimony from a police witness that she had previously viewed a photograph of defendant shortly after the November 10, 1992 sale. Although it is ordinarily improper to permit a witness to testify that he or she identified the defendant from a photograph, courts have recognized an exception where defense counsel opens the door to this inquiry during cross-examination of the witness (see, e.g., People v. Austin, 152 A.D.2d 590, 543 N.Y.S.2d 507; People v. Green, 143 A.D.2d 768, 770, 533 N.Y.S.2d 474, lv. denied 73 N.Y.2d 922, 539 N.Y.S.2d 306, 536 N.E.2d 635; People v. Smith, 133 A.D.2d 863, 864, 520 N.Y.S.2d 222, lv. denied 71 N.Y.2d 903, 527 N.Y.S.2d 1012, 523 N.E.2d 319). Defense counsel here elicited testimony from the police officer on cross-examination that she had viewed a photograph of the defendant approximately two weeks before the trial, in an apparent effort to call her in-court identification of defendant into question. Under those circumstances, County Court properly permitted the prosecutor to question the police witness about the first time she had viewed the photograph, which was shortly after the November 10, 1992 transaction.

We also find that County Court properly denied a missing witness charge. Although the People failed to produce two of the backup police officers involved in the transactions, as to each transaction, the officer making the purchase and another backup officer each testified. Under these circumstances, we agree that the testimony of the additional backup officers would have been cumulative and that a missing witness charge was consequently not required (see, People v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583; People v. Ortiz, 193 A.D.2d 449, 451, 597 N.Y.S.2d 682, affd. 83 N.Y.2d 989, 616 N.Y.S.2d 333, 639 N.E.2d 1130; People v. Hughes, 180 A.D.2d 908, 910, 580 N.Y.S.2d 514, lv. denied 80...