People v. McCalvin

Appellate Division of the Supreme Court of New York

People v. McCalvin

309 A.D.2d 516, 765 N.Y.S.2d 24, 2003 N.Y. App. Div. LEXIS 9993

Appellate Division of the Supreme Court of the State of New York·Decided October 2, 2003·Published·Cited by 1 cases

Opinion

Judgment, Supreme Court, New York County (John Bradley, J.), rendered April 4, 2002, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, criminal sale of a controlled substance in or near school grounds and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 41/2 to 9 years, unanimously affirmed.

The court’s Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]; People v Walker, 83 NY2d 455, 458-459 [1994]; People v Pavao, 59 NY2d 282, 292 [1983]). The court properly allowed the prosecutor to question defendant about the nature and underlying facts of two of his prior convictions, even though they resembled the instant case, because they were highly relevant to defendant’s credibility and their probative value outweighed their prejudicial effect. The prosecutor’s brief and limited cross-examination of defendant as to whether his occupation was selling drugs was proper because defendant had testified that he been working at a legitimate occupation for many years. Defendant’s remaining arguments concerning the prosecutor’s cross-examination are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. The court properly refused to deliver a missing witness instruction as to a “ghost” undercover officer who had left the scene prior to the transaction and who had no contact with defendant (see People v Dianda, 70 NY2d 894 [1987]). Although this officer observed events that occurred prior to defendant’s arrival, these events were not material to defendant’s guilt or innocence.

We decline to invoke our interest of justice jurisdiction to dismiss the noninclusory concurrent count (see People v Spence, 290 AD2d 223 [2002], lv denied 98 NY2d 641 [2002]; People v Kulakov, 278 AD2d 519 [2000], lv denied 96 NY2d 785 [2001]). Concur — Nardelli, J.P., Mazzarelli, Andrias, Saxe and Williams, JJ.

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Judgment, Supreme Court, New York County (John Bradley, J.), rendered April 4, 2002, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, criminal sale of a controlled substance in or near school grounds and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 41/2 to 9 years, unanimously affirmed.

The court’s Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]; People v Walker, 83 NY2d 455, 458-459 [1994]; People v Pavao, 59 NY2d 282, 292 [1983]). The court properly allowed the prosecutor to question defendant about the nature and underlying facts of two of his prior convictions, even though they resembled the instant case, because they were highly relevant to defendant’s credibility and their probative value outweighed their prejudicial effect. The prosecutor’s brief and limited cross-examination of defendant as to whether his occupation was selling drugs was proper because defendant had testified that he been working at a legitimate occupation for many years. Defendant’s remaining arguments concerning the prosecutor’s cross-examination are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. The court properly refused to deliver a missing witness instruction as to a “ghost” undercover officer who had left the scene prior to the transaction and who had no contact with defendant (see People v Dianda, 70 NY2d 894 [1987]). Although this officer observed events that occurred prior to defendant’s arrival, these events were not material to defendant’s guilt or innocence.

We decline to invoke our interest of justice jurisdiction to dismiss the noninclusory concurrent count (see People v Spence, 290 AD2d 223 [2002], lv denied 98 NY2d 641 [2002]; People v Kulakov, 278 AD2d 519 [2000], lv denied 96 NY2d 785 [2001]). Concur — Nardelli, J.P., Mazzarelli, Andrias, Saxe and Williams, JJ.

People v. McCalvin, 309 A.D.2d 516, 765 N.Y.S.2d 24, 2003 N.Y. App. Div. LEXIS 9993 (N.Y. Ct. App. 2003).

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