Opinion
3512, 3512A.
Decided April 29, 2004.
Judgment, Supreme Court, New York County (Renee White, J.), rendered November 21, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds and criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years; and order, same court and Justice, entered on or about April 28, 2003, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment, unanimously affirmed.
Robert S. Dean, Center for Appellate Litigation, New York (Lisa Lewis of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Madeleine Guilmain of counsel), for respondent.
Before: Tom, J.P., Ellerin, Lerner, Marlow, JJ.
The court properly denied defendant's motion to vacate the judgment, in which he alleged that, years after his arrest and months after his trial, the principal police witness gave false grand jury testimony about his observations in an unrelated drug arrest and was subsequently indicted for perjury. Defendant failed to establish that the newly discovered evidence of the detective's alleged perjury, subsequent and unrelated to defendant's trial, was material ( see People v. Salemi, 309 N.Y. 208), since this evidence merely tended to impeach the detective's general credibility ( see e.g. People v. Roberson, 276 A.D.2d 446, lv denied 96 N.Y.2d 805). In any event, the detective was ultimately acquitted of the perjury charges, and this would now preclude inquiry into the underlying facts ( People v. Santiago 15 N.Y.2d 640). "The acquittal of the witness negates the good faith and basis in fact requirements" for such an inquiry ( People v. Booker 134 A.D.2d 949, 950, lv denied 70 N.Y.2d 953 [citations omitted]).
The challenged portions of the People's summation generally constituted fair comment on the evidence, and reasonable inferences to be drawn therefrom, in response to defense arguments, and the summation did not deprive defendant of a fair trial ( see People v. Overlee, 236 A.D.2d 133, lv denied 91 N.Y.2d 976; People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884). The court's curative actions, including sustaining objections, directing the prosecutor to rephrase questions, and delivering curative instructions, were sufficient to prevent any of the challenged remarks from causing any prejudice.
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.