People v. Smith

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before ROSS
• Citation: People v. Smith, 561 N.Y.S.2d 189, 166 A.D.2d 385 (N.Y. App. Div. 1990)
• Decision Date: 30 October 1990
• Parties: PEOPLE of the State of New York, Respondent, v. Asa SMITH, Defendant-Appellant.

Page 189

561 N.Y.S.2d 189

166 A.D.2d 385

PEOPLE of the State of New York, Respondent, v. Asa SMITH, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Oct. 30, 1990.

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

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered June 7, 1989, which, after a jury trial, convicted defendant of attempted burglary in the second degree and possession of burglar's tools, and which sentenced defendant to concurrent terms of imprisonment of 3 1/2 to 7 years and 1 year, respectively, is unanimously affirmed.

Two police officers arrested defendant on the fifth floor of a multiple dwelling when they observed him attempting to jimmy open an apartment door. In the course of the arrest the officers recovered two metal strips from or near defendant's person.

At trial the People presented the testimony of the two officers, the occupant of an adjacent apartment, and sought to call an expert from the police safe, lock and truck squad to testify that the metal strips were picklock implements, and therefore burglar's tools. After an offer of proof by the prosecutor, it developed that the expert was not then available. Apparently as a matter of efficient courtroom management, inasmuch as defendant had made known his wish to testify on his own behalf, the court directed defendant, over his counsel's objection, to proceed with his testimony without requiring the People to rest. The People's expert was subsequently permitted to testify thereafter.

We agree with the conclusion of the trial court that this modest departure from the normal order of trial set out in CPL § 260.30 (much of which is cast in permissive rather than mandatory terms) did not, in view of disclosure to defendant, prior to his becoming a witness, of the content of the expert's proposed testimony, either tactically disadvantage defendant or deprive him of a fair trial. The CPL framework delineating the order of trial does not foreclose the trial court's exercise of its common law power to vary the order of proof "in its discretion and in furtherance of justice." (People v. Olsen, 34 N.Y.2d 349, 353, 357 N.Y.S.2d 487, 313 N.E.2d 782, citing People v. Benham, 160 N.Y. 402, 437, 55 N.E. 11), a power which "remains at least up to the time the case is submitted to the jury." (id.)

Although defendant cites Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 in support of...