TOM
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sylvia Wertheimer of counsel), for respondent.
TOM, J.P., RENWICK, ANDRIAS, RICHTER, GISCHE, JJ.
Judgment, Supreme Court, New York County (Patricia Nunez, J.), rendered January 3, 2013, convicting defendant, after a jury trial, of 10 counts of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, to concurrent terms of 12 years, unanimously affirmed.
The court properly exercised its discretion in denying defendant's request to question a detective regarding certain federal lawsuits in which the detective was one of the named defendants, and the court's ruling did not deprive defendant of his right to confront witnesses and present a defense ( see Delaware v. Van Arsdall, 475 U.S. 673, 678–679, 106 S.Ct. 1431, 89 L.Ed.2d 674 [1986] ). Defendant failed to establish a good faith basis for eliciting the underlying facts of these lawsuits under the theory that they involved prior bad acts by this detective bearing on his credibility ( see People v. Andrew, 54 A.D.3d 618, 863 N.Y.S.2d 676 [1st Dept.2008], lv. denied11 N.Y.3d 895, 873 N.Y.S.2d 271, 901 N.E.2d 765 [2008]; see also People v. Smith, 122 A.D.3d 456, 996 N.Y.S.2d 37 [1st Dept.2014] ), as defendant did not specify any factual allegations supporting the assertion that this detective had participated in false arrests. In any event, any error in precluding cross-examination based on the federal litigation was harmless, because the People's case rested primarily on the credibility and reliability of the testimony of the undercover officers who made the charged drug purchases, not on that of this detective, who supervised the case and provided an overview of the investigation ( see Andrew, 54 A.D.3d at 619, 863 N.Y.S.2d 676).
The court properly exercised its discretion in ruling that defendant's impeachment of the detective regarding a discrepancy in a document prepared by him opened the door to evidence of the detective's knowledge of defendant's involvement in uncharged sales that were part of the same investigation ( see generally People v. Mateo, 2 N.Y.3d 383, 425, 779 N.Y.S.2d 399, 811 N.E.2d 1053 [2004]; People v. Rojas, 97 N.Y.2d 32, 38, 735 N.Y.S.2d 470, 760 N.E.2d 1265 [2001] ). This evidence tended to dispel a misleading impression that the discrepancy reflected the actual state of the detective's knowledge, as opposed to being a paperwork error. Since this evidence was not offered for its truth, but as evidence of the detective's state of mind, defendant's hearsay and Confrontation Clause arguments are unavailing. In addition, we find that this evidence was not unduly prejudicial under the circumstances of the case.
The court properly denied defendant's motion to suppress a photographic identification. The record supports the court's finding that the photo array was not unduly suggestive, since defendant and the other participants were reasonably similar in appearance. The difference between defendant's photo and the other photos was not sufficient to create a substantial likelihood that defendant would be singled out for identification ( see People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert. denied498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ).
The sentencing court properly adjudicated defendant a second felony drug offender whose prior felony conviction was a violent felony. Defendant's conviction of criminal possession of a weapon in the third degree qualifies as a violent felony, and defendant's arguments to the contrary are similar to arguments this Court has previously rejected ( see People v. Thomas, 122 A.D.3d 489, 995 N.Y.S.2d 508 [1st Dept.2014]; People v. Bowens, 120 A.D.3d 1148, 992 N.Y.S.2d 881 [1st Dept.2014] ).
We perceive no basis for reducing the sentence.