Opinion
December 28, 1995
Appeal from the Supreme Court, Bronx County (Lawrence J. Tonetti, J.).
Since the record was unclear, we remanded this matter for a hearing to determine whether defendant was present at the Sandoval hearing and held the appeal in abeyance pending such hearing ( 216 A.D.2d 16). The hearing was held and apparently there was a bench conference before the Sandoval hearing at which defendant was not present. However, defendant had no right to be present at this off-the-record conference concerning his criminal background since it merely concerned "matters preparatory to the Sandoval hearing" ( People v Allen-Collins, 207 A.D.2d 725, lv denied 84 N.Y.2d 1008). At the subsequent hearing, held in open court, defendant was provided a full opportunity to litigate all Sandoval issues ( People v Watson, 205 A.D.2d 398, lv denied 84 N.Y.2d 834).
The testimony that "evidence" was recovered from the defendant did not violate the court's in limine ruling prohibiting evidence that a crack pipe was recovered from him. In any event, the court struck such testimony from the record ( People v Roman, 210 A.D.2d 45, lv denied 84 N.Y.2d 1037), and defendant made no objection to this curative measure ( People v Ramirez, 200 A.D.2d 377, lv denied 83 N.Y.2d 857).
Although certain remarks by the prosecutor during summation improperly implied that the non-testifying defendant had a criminal record, the remarks were isolated, not facially incriminatory, and could as fairly be interpreted in a non-prejudicial manner ( see, People v Gonzalez, 168 A.D.2d 283, lv denied 77 N.Y.2d 906, 961). The other comments complained of did not impermissibly shift the burden of proof and constituted a fair response to the defense summation ( see, People v Galloway, 54 N.Y.2d 396).
Finally, the court's identification charge, as a whole, conveyed the proper standard that identification must be proven beyond a reasonable doubt ( see, People v Whalen, 59 N.Y.2d 273, 279). In addition, the court's reasonable doubt charge did not place an affirmative burden on the jurors to explain the reasons for their doubts ( see, People v Keegan, 213 A.D.2d 282, lv denied 86 N.Y.2d 737).
Concur — Murphy, P.J., Sullivan, Rubin, Asch and Williams, JJ.