People v. Dien

Judgment, Supreme Court, New York County (Jay Gold, J.), rendered May 31, 1989, convicting defendant, after a jury trial, of robbery in the first degree and robbery in the second degree and sentencing him to concurrent indeterminate terms of imprisonment of from 3 to 9 years and 2 to 6 years, respectively, unanimously affirmed. While we agree that the prosecutor’s comment to the jury during summation as to conceptions held by them with regard to members of defendant’s race was improper, the error was harmless in light of the overwhelming evidence of defendant’s guilt. The prosecutor’s statement that defendant had appealed to the jury’s perceptions that a "38 year old white man does not commit knife-point robberies of cab drivers” was racially offensive and created an issue where none existed (People v Rivera, 136 AD2d 520, 521, affd 73 NY2d 941; People v Lowrance, 50 AD2d 769, affd 41 NY2d 303). However, in view 196 of the fact that the conviction was based on overwhelming evidence and that the issue of credibility was easily resolved in favor of complainant, reversal is not warranted. We reject defendant’s contention that the court failed to make a timely ruling on the People’s application to use, on cross-examination, the fact that defendant had a hypodermic needle in his possession at the time of his arrest. The court ruled that it would permit cross-examination of defendant, should he take the stand, with respect to the needle if defendant denied using heroin or being a frequent user of heroin. It was not an improvident exercise of discretion for the court to have permitted the cross-examination in question after defendant responded that he had not used heroin on the day of the crime (People v Sandoval, 34 NY2d 371). We have considered defendant’s claim that his sentence was excessive and conclude that he has failed to demonstrate any abuse of discretion on the part of the sentencing court. Concur —Murphy, P. J., Carro, Rosenberger, Asch and Rubin, JJ.