Opinion
February 17, 1987
Appeal from the County Court, Nassau County (Santagata, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction of burglary in the second degree as charged in the second count of the indictment, vacating the sentence imposed thereon, and that count of the indictment is dismissed. As so modified, the judgment is affirmed.
The arrest of the defendant in this case was predicated upon a radio transmission that a burglary had been committed, which included a description of the physical appearance and clothing of the suspected burglar, as well as information that the suspect was heading in the arresting officer's direction and might be armed. When the officer first observed the defendant and made eye contact with him, the defendant acted in a furtive manner, going from store to store, changing directions and crossing streets. When coupled with the fact that the defendant initially refused to heed the officer's direction to stop and thereafter could proffer no explanations for his actions, the officer was amply justified in his gunpoint detention and frisk of the defendant (see, People v. Rosario, 94 A.D.2d 329; People v. Finlayson, 76 A.D.2d 670, lv denied 51 N.Y.2d 1011, cert denied 450 U.S. 931). The subsequent showup identification which took place some three or four minutes later, only 20 minutes after the witness's face-to-face viewing of the defendant on the scene, and in close proximity to the crime site, was the type of constitutionally appropriate prompt identification procedure that serves to enhance the reliability of identifications (People v. Love, 57 N.Y.2d 1023; People v. Brnja, 50 N.Y.2d 366; People v. Soto, 87 A.D.2d 618).
At the Sandoval hearing, the People sought permission to cross-examine the defendant as to alleged prior crimes committed in Cuba. The prosecutor stated that his request was based on published studies which indicated that certain tattoo marks borne by the defendant were placed on inmates in Cuban prisons. The prosecutor added that while he was unable to obtain any documentary proof of the existence of any prison record from Cuba, "I think it is almost common knowledge that a great percentage of the Cubans who did come over in the flotilla in 1979 and 1980 were people released from Cuban jails". It was clearly improper for the trial court to permit such inquiry where the People failed to articulate a reasonable basis in fact for the allegations and a good-faith basis for making the inquiry (see, People v. Kass, 25 N.Y.2d 123; People v Adams, 107 A.D.2d 1040). However, in spite of the fact that there was no attempt by the trial court to balance the probative value that this inquiry would have had regarding the defendant's credibility against the potential for unfair prejudice, the error did not discourage Hernandez from taking the stand (see, People v. Sandoval, 34 N.Y.2d 371). Under the circumstances, and especially since the proof of the defendant's guilt was overwhelming and there was not a significant probability that the jury would have acquitted the defendant but for the error, we conclude that it was harmless (People v. Crimmins, 36 N.Y.2d 230; People v. Reed, 56 A.D.2d 896).
Additionally, comments made by the prosecutor during summation with regard to the defendant's inability to speak English and suggesting that the defendant had committed crimes in Cuba were improper. However, in view of the trial court's immediate curative instructions, as well as the specific and clear instructions given during its charge to the jury, any possible prejudice was quickly dispelled (People v. Ashwal, 39 N.Y.2d 105). To the extent that any of the prosecutor's comments were improper, any prejudice suffered by the defendant was harmless, and did not deprive him of a fair trial (People v. Crimmins, supra).
Lastly, however, given the entirely circumstantial nature of the evidence with respect to the first of the two burglaries, it cannot be said, nor can any inference reasonably be made, that there was proof to a moral certainty that the defendant was a participant in that burglary. The absence of proof placing the defendant at the scene or connecting the defendant with the codefendant prior to commission of the second burglary, provides a reasonable hypothesis that one other than the defendant may have committed the first burglary (see, People v. Way, 59 N.Y.2d 361; People v. Borrero, 26 N.Y.2d 430). Similarly, it cannot be said that the defendant had "recent and exclusive possession of", or exercised "dominion and control over", the fruits of the first burglary (see, People v. Galbo, 218 N.Y. 283, 290; People v Donaldson, 107 A.D.2d 758). Accordingly, we find that the trial court should have dismissed the second count of the indictment. With respect, however, to the defendant's conviction for possession of burglar's tools, the jury was free to conclude from the circumstantial evidence that the two flashlights, assorted tools, and two pairs of gloves in his attache case were possessed for use in committing the second of the two burglaries (Penal Law § 140.35; see, People v. Borrero, supra; People v. Smith, 23 N.Y.2d 955; People v. Wachowicz, 22 N.Y.2d 369). Brown, P.J., Weinstein, Rubin and Spatt, JJ., concur.