Opinion
December 3, 1992
Appeal from the County Court of Albany County (Keegan, J.).
The events underlying the instant charges occurred on April 7, 1985 at approximately 12:35 A.M. in the Arbor Hill area of the City of Albany when a confidential informant for the Albany Police Department bought from defendant a plastic bag containing 1/16 of an ounce of a white powdery substance which later proved to be cocaine. Defendant was subsequently arrested under an outstanding arrest warrant and then indicted for criminal sale of a controlled substance in the third degree.
After a Sandoval hearing and a full trial, defendant was convicted by a jury of the charge and sentenced as a second felony offender to a prison term of 12 1/2 to 25 years. After taking this appeal defendant moved pursuant to CPL 440.10 to vacate his conviction on the ground of newly discovered evidence. The motion was denied and defendant was granted leave to appeal from County Court's order.
Defendant contends that County Court committed reversible error (1) by failing to make a Sandoval ruling precluding the prosecution from cross-examining him on two pending unrelated crimes which he alleges adversely affected his assertion of the privilege against self-incrimination, (2) by the admission of testimony of the confidential informant that the informant purchased cocaine from Addie Gause a short time before the transaction with defendant, which was irrelevant to the crime charged, (3) by refusing defendant's request to cross-examine the informant concerning allegedly inaccurate identification testimony that the informant had given at other trials, and (4) by denying defendant's motion for a mistrial.
The first contention is not reviewable on this appeal because defendant failed to object to County Court's Sandoval ruling on the ground that he intended to claim the privilege against self-incrimination at trial (see, People v Young Boom Kim, 170 A.D.2d 707; People v Bennett, 169 A.D.2d 369, 372-373, affd 79 N.Y.2d 464; People v Scahill, 167 A.D.2d 857; see also, People v Betts, 70 N.Y.2d 289, 294; People v Pavao, 59 N.Y.2d 282, 292, n 3). The objection was thus waived.
Defendant next claims that he was deprived of a fair trial because of the introduction of testimony regarding a drug buy by the informant from Gause. While this testimony was of no probative value and clearly not relevant to the crime charged, any error occasioned by its introduction was harmless in view of the overwhelming proof of defendant's guilt (see, People v White, 173 A.D.2d 897, 898, lv denied 78 N.Y.2d 976). We agree that the informant's testimony that the substance was cocaine and identifying the place where and the time of the purchase was not explanatory of or "inextricably intertwined" with the chain of custody testimony of the arresting police officers; it was, therefore, erroneously admitted (see, People v Ely, 68 N.Y.2d 520, 529). However, as the proof of defendant's guilt was overwhelming, the error is harmless (see, People v White, supra, at 898).
The limitation of the cross-examination of the informant was not an abuse of discretion (see, People v Duffy, 185 A.D.2d 528, lv denied 80 N.Y.2d 903). The exclusion of the proposed cross-examination of the informant regarding his prior wrongful identification testimony given at other trials was not improper as the identity of defendant was not at issue in this case and such testimony would have been irrelevant (see, People v Davis, 43 N.Y.2d 17, 27, cert denied 435 U.S. 998).
County Court properly denied defendant's motion for a mistrial based upon Police Officer Kevin Burke's testimony that a scuffle occurred when he arrested defendant. The court sustained defendant's objection to the testimony and gave appropriate curative instructions. Thus, no prejudice accrued to defendant.
Defendant has not addressed in his brief the denial of his CPL 440.10 motion to vacate the judgment of conviction based on newly discovered evidence involving alleged evidence tampering by a State Trooper; the issue is thus waived. We note, however, that defendant's new evidence consisted solely of newspaper articles which are conclusory and, thus, would only lead to a finding that County Court did not err in denying defendant's CPL 440.10 motion (see, People v Gates, 168 A.D.2d 995, 996, lv denied 77 N.Y.2d 906).
We have considered defendant's other arguments for reversal and find them without merit.
Yesawich Jr., Mercure, Crew III and Casey, JJ., concur. Ordered that the judgment and order are affirmed.