PEOPLE v. McCALVIN (2003)

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 4 1/212 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 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963;  People v. Walker, 83 N.Y.2d 455, 458 459, 611 N.Y.S.2d 118, 633 N.E.2d 472;  People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216).   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 N.Y.2d 894, 524 N.Y.S.2d 381, 519 N.E.2d 292).   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 non-inclusory concurrent count (see People v. Spence, 290 A.D.2d 223, 735 N.Y.S.2d 756, lv. denied 98 N.Y.2d 641, 744 N.Y.S.2d 770, 771 N.E.2d 843;  People v. Kulakov, 278 A.D.2d 519, 716 N.Y.S.2d 824, lv. denied 96 N.Y.2d 785, 725 N.Y.S.2d 649, 749 N.E.2d 218).