People v. Medina

Appellate Division of the Supreme Court of New York

People v. Medina

171 A.D.2d 559, 567 N.Y.S.2d 651, 1991 N.Y. App. Div. LEXIS 3697

Appellate Division of the Supreme Court of the State of New York·Decided March 21, 1991·Published·Cited by 9 cases

Opinion

Judgment, Supreme Court, Bronx County (Phylis Bamberger, J.), rendered February 9, 1989, convicting defendant, after a jury trial, of two counts of criminal sale of a controlled substance in the third degree, and three counts of criminal possession of a controlled substance in the third degree, for which defendant was sentenced as a second felony offender to concurrent terms of six to twelve years and four and one-half to nine years, respectively, unanimously modified, on the law, to reverse the conviction with respect to counts three and four of the indictment, and to dismiss those charges, and otherwise affirmed.

Defendant was convicted following a jury trial at which a police officer testified that defendant was observed selling narcotics. Defendant now challenges the court’s Sandoval ruling, in which cross-examination was permitted as to two [560]*560felony and three misdemeanor convictions in 1977 and 1979, without inquiry into the nature of or the underlying facts of any of those crimes. However, by failing to object to the Sandoval ruling, defendant has waived appellate review as a matter of law. Indeed defendant requested the Sandoval compromise as charged. In view of this limited inquiry which was permitted, we would find no infirmity in the Sandoval ruling on the ground that the subject convictions were too remote in time. (See, e.g., People v Ortiz, 156 AD2d 197, Iv denied 76 NY2d 740; see, People v Yeaden, 156 AD2d 208, Iv denied 75 NY2d 872.)

The charge as given, although not tracking the suggested language of the Criminal Jury Instructions (1 CJI[NY] 6.20, at 248), sufficiently conveyed the import of the phrasing requested by defense counsel.

We find no basis to reverse for the court’s failure to augment its charge by stating that reasonable doubt can arise from a lack of evidence as well as from the evidence presented. (See, People v Roldos, 161 AD2d 610, Iv denied 76 NY2d 864.) Finally, the People concede on the basis of our ruling in People v Snyder (154 AD2d 269, Iv denied 75 NY2d 776), that counts three and four of the indictment, charging criminal possession of a controlled substance in the third degree, stem directly from charges for criminal sale, and should be dismissed in the interest of justice. Concur — Milonas, J. P., Kupferman, Asch, Kassal and Smith, JJ.

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Judgment, Supreme Court, Bronx County (Phylis Bamberger, J.), rendered February 9, 1989, convicting defendant, after a jury trial, of two counts of criminal sale of a controlled substance in the third degree, and three counts of criminal possession of a controlled substance in the third degree, for which defendant was sentenced as a second felony offender to concurrent terms of six to twelve years and four and one-half to nine years, respectively, unanimously modified, on the law, to reverse the conviction with respect to counts three and four of the indictment, and to dismiss those charges, and otherwise affirmed.

Defendant was convicted following a jury trial at which a police officer testified that defendant was observed selling narcotics. Defendant now challenges the court’s Sandoval ruling, in which cross-examination was permitted as to two [560]*560felony and three misdemeanor convictions in 1977 and 1979, without inquiry into the nature of or the underlying facts of any of those crimes. However, by failing to object to the Sandoval ruling, defendant has waived appellate review as a matter of law. Indeed defendant requested the Sandoval compromise as charged. In view of this limited inquiry which was permitted, we would find no infirmity in the Sandoval ruling on the ground that the subject convictions were too remote in time. (See, e.g., People v Ortiz, 156 AD2d 197, Iv denied 76 NY2d 740; see, People v Yeaden, 156 AD2d 208, Iv denied 75 NY2d 872.)

The charge as given, although not tracking the suggested language of the Criminal Jury Instructions (1 CJI[NY] 6.20, at 248), sufficiently conveyed the import of the phrasing requested by defense counsel.

We find no basis to reverse for the court’s failure to augment its charge by stating that reasonable doubt can arise from a lack of evidence as well as from the evidence presented. (See, People v Roldos, 161 AD2d 610, Iv denied 76 NY2d 864.) Finally, the People concede on the basis of our ruling in People v Snyder (154 AD2d 269, Iv denied 75 NY2d 776), that counts three and four of the indictment, charging criminal possession of a controlled substance in the third degree, stem directly from charges for criminal sale, and should be dismissed in the interest of justice. Concur — Milonas, J. P., Kupferman, Asch, Kassal and Smith, JJ.

People v. Medina, 171 A.D.2d 559, 567 N.Y.S.2d 651, 1991 N.Y. App. Div. LEXIS 3697 (N.Y. Ct. App. 1991).

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