People v. Rodriguez

—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.