People v. Depass

168 A.D.2d 230, 562 N.Y.S.2d 473, 1990 N.Y. App. Div. LEXIS 14772

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 6, 1990
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Antonio Brandveen, J.), rendered July 14, 1988, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him to a prison term of SVi to 17 years, unanimously modified, as a matter of discretion in the interest of justice, to reduce the sentence to 5 to 10 years, and otherwise affirmed.

Defendant’s claim that the prosecutor was obligated to turn over the property voucher and laboratory analysis request, concerning drugs found on a juvenile codefendant, has not been preserved. Were we to consider the claim, in the interest of justice, we would find it meritless. The evidence concerning the other drugs, elicited by defense counsel, was stricken at defendant’s request. (Cf, People v Kelly, 62 NY2d 516, 521.)

Defendant’s claim that he should have been advised that a diagram prepared by a police witness contained an error is similarly unpreserved. The diagram had been turned over to the defense for the trial. After the officer stated, on cross-examination, that he had brought the error to the attention of the District Attorney, defense counsel sought and obtained a stipulation. He did not move for a mistrial or other relief. Nor is any relief required in the interest of justice. Counsel used the inconsistency to his advantage on summation.

However, we find the sentence imposed, 8½ to 17 years, excessive, for this crime involving only a single $20 sale of crack. Concur—Murphy, P. J., Ross, Carro and Rosenberger, JJ.