People v. Cruz

Judgment, Supreme Court, New York County (Leon Becker, J., at suppression hearing, jury trial and sentence), rendered April 26, 1988, convicting defendant of criminal possession of a weapon in the second degree and sentencing him, as a predicate felon, to an indeterminate term of imprisonment of from 6 to 12 years, unanimously affirmed.

We agree with the defendant that the court improperly admitted into evidence testimony that the police officer, who had observed defendant threatening another man with the weapon, was, at the time of his observation, engaged in drug activity surveillance of the premises where defendant was observed. This evidence of "background material” was not necessary to provide a complete picture of the events so as to prevent the jury from speculating as to why the officer observed defendant’s conduct. It was neither probative nor relevant to the ability of the People to establish or explain any material fact. (People v Fay, 85 AD2d 512, appeal withdrawn 56 NY2d 593; People v Hernandez, 139 AD2d 472, 477.) However, the evidence was prejudicial insofar as it cast suspicion upon defendant, charged with possession of a weapon, as the subject of a drug investigation or as a participant in drug trafficking. (See, People v Green, 35 NY2d 437, 440.)

In view of the overwhelming evidence of defendant’s guilt and the curative instructions immediately issued by the court, admonishing the jury against drawing any such prejudicial inference, any potential prejudice to defendant was obviated. (People v Fay, supra, at 513.) In addition, the trial court individually polled the jurors to assure itself that they would be able to comply with its clear instructions, which were not objected to.

We have considered defendant’s argument that the sentence, as imposed, was excessive and rejected it. Defendant has not demonstrated that the sentencing court abused its discretion. Concur—Sullivan, J. P., Ross, Rosenberger, Ellerin and Rubin, JJ.