Opinion
2000-09984
Argued September 17, 2002.
October 7, 2002.
Appeal by the defendant from a judgment of the County Court, Nassau County (Cotter, J.), rendered September 25, 2000, convicting him of assault in the first degree, gang assault in the first degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and criminal use of a firearm in the first degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
Andrew E. MacAskill, Farmingdale, N.Y., for appellant.
Denis Dillon, District Attorney, Mineola, N.Y. (Peter A. Weinstein and Steven R. Bernhard of counsel), for respondent.
Before: SANDRA J. FEUERSTEIN, J.P., LEO F. McGINITY, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish that he committed the crime of gang assault in the first degree is unpreserved for appellate review (see CPL 470.05; People v. Udzinski, 146 A.D.2d 245). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish beyond a reasonable doubt that the driver and the passengers in the backseat of the vehicle that the defendant was riding in when he shot the complainant were "two or more persons actually present," to support the conviction of gang assault in the first degree (Penal Law § 120.07). The jury could have reasonably inferred that the backseat passengers were in a position to render immediate assistance to the defendant should it prove necessary and, therefore, posed a sufficient threat of additional violence so as the satisfy the aggravating element necessary to sustain the conviction of gang assault in the first degree (see People v. Carr-El, 287 A.D.2d 731, lv granted 98 N.Y.2d 733 [Mar. 5, 2002]; People v. Dennis, 146 A.D.2d 708, affd 75 N.Y.2d 821). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15).
The defendant's challenge to the trial court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371) is without merit. The court struck an appropriate balance between the probative value of the defendant's prior crime on the issue of his credibility and the possible prejudice to the defendant (see People v. Scarpulla, 238 A.D.2d 359; People v. Overton, 192 A.D.2d 624). Moreover, the mere fact that the prior conviction was similar in nature to the instant offenses did not warrant its preclusion. The fact that the defendant chose to specialize in one type of criminal activity does not shield him from impeachment by use of the prior conviction (see People v. Pavao, 59 N.Y.2d 282; People v. Sokolov, 245 A.D.2d 317).
We reject the defendant's contention that the County Court erred in denying his request that the complaining witness be produced at the Wade hearing (see United States v. Wade, 388 U.S. 218) because he communicated through an interpreter during the photographic array identification procedure. Since the evidence presented at the hearing failed to raise an issue with respect to the constitutionality or suggestiveness of the identification procedure, the court providently exercised its discretion in denying the defendant's request to produce the complaining witness (see People v. Chipp, 75 N.Y.2d 327, cert denied sub nom Chipp v. New York, 498 U.S. 833; People v. Galarza, 206 A.D.2d 387).
FEUERSTEIN, J.P., McGINITY, LUCIANO and SCHMIDT, JJ., concur.