People v. Tirado

• Decision Date: 08 April 1993
• Parties: The PEOPLE of the State of New York, Respondent, v. Juan TIRADO, Also Known as "Flaco", Appellant.
• Court: New York Supreme Court — Appellate Division

Page 183

596 N.Y.S.2d 183

192 A.D.2d 755

The PEOPLE of the State of New York, Respondent, v. Juan TIRADO, Also Known as "Flaco", Appellant.

Supreme Court, Appellate Division,

Third Department.

April 8, 1993.

Edward H. Wassermann, Albany, for appellant.

Guy P. Tomlinson, Dist. Atty. (Joseph M. Sise, of counsel), Fonda, for respondent.

Before WEISS, P.J., and YESAWICH, MERCURE, MAHONEY and CASEY, JJ.

WEISS, Presiding Justice.

Appeals (1) from a judgment of the County Court of Montgomery County (Aison, J.), rendered November 27, 1991, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree, and (2) by permission, from an order of said court, entered March 23, 1992, which denied defendant's motion pursuant to CPL 440.20 to set aside the sentence, without a hearing.

On March 16, 1990, undercover State Police Investigator Samuel Mercado with the assistance of an informant, Eduard Ortez, purchased 1/16 of an ounce of cocaine from defendant, who was working as a barkeeper at the Blaze Inn Bar in the City of Amsterdam, Montgomery County. Defendant was convicted after trial of criminal sale of a controlled substance in the third degree. This appeal ensued.

Defendant argues first that the verdict was against the weight of the evidence. We disagree. The testimony of Mercado and Ortez clearly established the sale whereas the testimony of defendant and a bar patron who was defendant's longtime friend merely raised an issue of credibility for resolution by the jury (see, People v. Bey, 179 A.D.2d 905, 906, 579 N.Y.S.2d 187, lv. denied 79 N.Y.2d 918, 582 N.Y.S.2d 78, 590 N.E.2d 1206, and 79 N.Y.2d 1046, 584 N.Y.S.2d 1014, 596 N.E.2d 412; see also, People v. Allen, 191 A.D.2d 752, 594 N.Y.S.2d 375). A review of the record satisfies us that the verdict was not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Defendant next contends error by County Court in its Sandoval ruling (People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413). The court permitted the prosecution to cross-examine defendant about a July 27, 1981 misdemeanor assault in the third degree conviction including the underlying facts, and to inquire whether defendant had been convicted of a class A-II felony without reference, however, to the underlying facts of the crime, but with an observation that such an A-II felony "is one of the most serious felonies that can be committed". Defendant argues that this ruling had the effect of permitting the prosecution to prejudice him by suggesting that he was of a criminal bent and therefore likely to have committed the instant crime. The argument lacks merit. Sandoval determinations require a discretionary balancing of potential prejudice to defendants from the disclosure of prior specific criminal, vicious or immoral acts against impeachment of their credibility by demonstrating that they have placed their personal interests ahead of those of society (People v. Bennette, 56 N.Y.2d 142, 145, 451 N.Y.S.2d 647, 436 N.E.2d 1249). We find that County Court properly weighed the competing factors and reached a reasonable Sandoval compromise (see, People v. Robertson, 175 A.D.2d 345, 572 N.Y.S.2d 422; People v. Szczepanski, 172 A.D.2d 884, 885, 568 N.Y.S.2d 184, lv. denied 78 N.Y.2d 957, 573 N.Y.S.2d 653, 578 N.E.2d 451).

Defendant has also challenged both the conduct of the prosecutor during summation and the adequacy of the charge by County Court to the jury on the law to be applied. However, by failing to object at trial where any improper conduct or charge issue could be promptly resolved and readily cured, defendant has failed to preserve these issues for appellate review (see, People v. Rivera, 73 N.Y.2d 941, 942, 540 N.Y.S.2d 233, 537 N.E.2d 618; People v. Longo, 182 A.D.2d 1019, 1022, 582 N.Y.S.2d 832, lv. denied 80 N.Y.2d 906, 588 N.Y.S.2d 831, 602 N.E.2d 239; see also, CPL 470.05[2]. Moreover, the record does not reflect that the prosecutor's conduct was so flagrant as to warrant our intervention in the interest of justice (see, People v. Lewis, 162 A.D.2d 760, 764, 557 N.Y.S.2d 674, lv. denied 76 N.Y.2d 894, 561 N.Y.S.2d 557, 562 N.E.2d 882). We further find that County Court properly charged the jury on the role of the trial court as to matters of law and that, if the jury found that the People had proven each of the elements of the crime beyond a reasonable doubt, defendant "must" be found guilty as charged (see, People v. Goetz, 73 N.Y.2d 751, 536 N.Y.S.2d 45, 532 N.E.2d 1273, cert. denied 489 U.S. 1053, 109 S.Ct. 1315, 103 L.Ed.2d 584). We reject defendant's argument that a "nullification or mercy-dispensing power" was available to the jury to effectively enable the jury to override or disregard the court's instructions on the law. While that process may occasionally have been improperly exercised as a consequence of the jury system, clearly it is neither legally sanctioned nor encouraged (see, People v. Goetz, supra,...