People v. Nunez

253 A.D.2d 685, 678 N.Y.S.2d 91, 1998 N.Y. App. Div. LEXIS 9593

Opinion

Judgment, Supreme Court, New York County (Paul Bookson, J.), rendered January 5, 1995, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 71/2 to 15 years, unanimously affirmed.

Each of defendant’s claims is unpreserved and we decline to review any of them in the interest of justice. Since the People’s cross-examination of defendant about his pretrial silence was exploited by defendant to his advantage, the error, if any, does not warrant our review in the interest of justice (see, People v Morales, 246 AD2d 396, lv denied 91 NY2d 943). The People did not violate the court’s Sandoval ruling, since defendant’s denial of drug-related activity opened the door to the challenged questions (People v Wilkens, 239 AD2d 105, lv denied 90 NY2d 899). The challenged portions of the prosecutor’s summation were fair response to defendant’s summation. Imposition, without objection, of a second felony offender sentence despite the prosecutor’s failure to file a predicate felony statement does not merit returning the case for resentence, since the sentencing court substantially complied with the statutory purposes of CPL 400.21 (see, People v Bouyea, 64 NY2d 1140). We perceive no abuse of sentencing discretion. Concur — Rosenberger, J. P., Ellerin, Nardelli and Williams, JJ.