People v. Rodriguez , 636 N.Y.S.2d 23 ( 1995 )

—Judgment, Supreme Court, Bronx County (Lawrence J. Tonetti, J.), rendered August 27, 1992, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously affirmed.

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 AD2d 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 AD2d 725, lv denied 84 NY2d 1008). At the subsequent hearing, held in open court, defendant was provided a full opportunity to litigate all Sandoval issues (People v Watson, 205 AD2d 398, lv denied 84 NY2d 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 AD2d 45, lv denied 84 NY2d 1037), and defendant made no objection to this curative measure (People v Ramirez, 200 AD2d 377, lv denied 83 NY2d 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 nonprejudicial manner (see, People v Gonzalez, 168 AD2d 283, lv denied 77 NY2d 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 NY2d 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 NY2d 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 AD2d 282, lv denied 86 NY2d 737). Concur — Murphy, P. J., Sullivan, Rubin, Asch and Williams, JJ.