Opinion
January 29, 1985
Appeal from the Monroe County Court, Celli, J.
Present — Hancock, Jr., J.P., Doerr, Boomer, Green and O'Donnell, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment based upon convictions for murder in the second degree and related offenses, defendant's principal argument is that he was denied a fair trial because the prosecutor knowingly allowed two chief witnesses to lie. There is no merit to this claim. The prosecutor informed the jury in his opening statement that there might be inconsistencies in the trial testimony because two key prosecution witnesses were convicted criminals who had motives to lie. Both witnesses agreed as to the most critical factor in the case, i.e., when last seen alive the murder victim was being guarded by the defendant who was armed, and the victim's body was found near the house in which he had been held hostage.
Defendant's claim of reversible error in the prosecutor's questioning of him concerning prior bad acts or in the prosecutor's summation is similarly without merit. Defendant did not object to much of the questioning and failed to preserve the issue for review (CPL 470.05, subd 2; People v. Wilson, 100 A.D.2d 690).
With respect to the remaining questions, the prosecutor, pursuant to the court's Sandoval ruling, cross-examined the defendant about immoral, vicious or criminal acts which had a direct bearing on defendant's credibility (see People v. Webster, 139 N.Y. 73, 84; Richardson, Evidence [10th ed], §§ 498-500). The questions related to the underlying acts involved in each transaction and, as appears from the record, were asked in good faith and upon a reasonable basis in fact (see People v. Kass, 25 N.Y.2d 123). Thus, the questioning was proper and subject to the sound discretion of the trial court (see People v. Schwartzman, 24 N.Y.2d 241, cert den 396 U.S. 846; People v. Sorge, 301 N.Y. 198). Moreover, while the prosecutor's summation was disjointed and unfocused, taken in its entirety it does not require reversal (see People v. Galloway, 54 N.Y.2d 396; see, also, Donnelly v DeChristoforo, 416 U.S. 637, 646-647).
Defendant also claims that the court's charge, in particular that portion relating to his alibi defense, was inadequate. While a more specific charge on alibi may have been preferable (see CJI 12.10), the trial court did not refer to the "truth" of defendant's alibi or otherwise mislead the jury to believe that the defendant had any burden of proof with respect to his alibi defense (cf. People v. Victor, 62 N.Y.2d 374). We have considered the other arguments raised by the defendant and preserved for review and find that none of them requires reversal.