People v. Cartagena

• Decision Date: 24 April 1990
• Citation: 554 N.Y.S.2d 252,160 A.D.2d 608
• Parties: The PEOPLE of the State of New York, Respondent, v. Ariel CARTAGENA a/k/a Luis Cartagena, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 252

554 N.Y.S.2d 252

160 A.D.2d 608

The PEOPLE of the State of New York, Respondent, v. Ariel CARTAGENA a/k/a Luis Cartagena, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

April 24, 1990.

T.J. Sweeney, for respondent.

G.W. Albro, New York City, for defendant-appellant.

Before KUPFERMAN, J.P., and ROSS, ELLERIN, WALLACH and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Bonnie G. Wittner, J.), rendered March 29, 1988, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and sentencing him to an indeterminate prison term of one to three years, unanimously affirmed.

Defendant was arrested for the sale to an undercover officer of a quantity of cocaine for $10. In a case where the identity of the defendant was at issue, the defendant seeks reversal because the trial court received in evidence: (1) the purchasing undercover officer's testimony that he made radio transmissions of the defendant's description before and after the arrest; (2) the arresting officer's testimony that he received the description before he and his partner made the arrest; (3) the prior written statement of the arresting officer that the defendant wore brown pants, after both the arresting officer and the undercover officer testified that the defendant had been wearing blue pants; and (4) another prior statement of the arresting officer, introduced on re-direct after cross-examination on the color discrepancy, to the effect that the defendant wore blue pants.

The first two issues were not preserved by objection at trial and we decline to reach them. Were we to reach them, in the interest of justice, we would find them to be without merit (See, People v. Candelario, 156 A.D.2d 191, 548 N.Y.S.2d 448).

The trial court should not have admitted into evidence the prior inconsistent statement to the effect that the defendant had been wearing brown pants. The admission of such a statement is governed by CPL 60.35, which requires that the later inconsistent statement have been "damaging" to the party that called the witness (People v. Fitzpatrick, 40 N.Y.2d 44, 50, 386 N.Y.S.2d 28, 351 N.E.2d 675), and that the written prior statement have been signed by the witness who made it. Nonetheless, the error was harmless. Despite the defendant's argument on appeal, his trial counsel was not prevented from using the inconsistency in cross-examining the arresting officer. Any...