PEOPLE v. WITT (1999)

Judgment, Supreme Court, New York County (William Wetzel, J.), rendered January 16, 1997, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, unanimously modified, on the law, the facts, and as a matter of discretion in the interest of justice, to vacate the persistent felony offender finding and the sentence imposed thereon and to substitute therefor a sentence of a term of 6 to 12 years, and otherwise affirmed.

 The court's Sandoval ruling appropriately balanced the probative value of defendant's prior criminal convictions against the potential for prejudice by limiting inquiry to only the number of defendant's prior misdemeanor convictions, which, as the court noted, showed a continuous pattern of defendant's willingness to place his interests above those of society (People v. Walker, 83 N.Y.2d 455, 459, 611 N.Y.S.2d 118, 633 N.E.2d 472), as well as the nature and dates of defendant's three prior felony convictions, including a prior felony drug sale conviction, without underlying facts or background information (People v. Couvertier, 222 A.D.2d 239, 635 N.Y.S.2d 12, lv. denied 87 N.Y.2d 971, 642 N.Y.S.2d 201, 664 N.E.2d 1264).

 Defendant entered no specific objection to the court's Hinton ruling and thus did not preserve his current claims of error (People v. Lugo, 233 A.D.2d 197, 650 N.Y.S.2d 102, lv. denied 89 N.Y.2d 1037, 659 N.Y.S.2d 868, 681 N.E.2d 1315).   We decline to review those claims in the interest of justice.   Were we to review them, we would find that the court's use of a screening procedure was an appropriate alternative to closure (see, People v. Rodriguez, 248 A.D.2d 181, 670 N.Y.S.2d 765, lv. denied 91 N.Y.2d 1012, 676 N.Y.S.2d 140, 698 N.E.2d 969;  People v. Perez, 245 A.D.2d 71, 665 N.Y.S.2d 647, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724).

 We find the court abused its discretion in sentencing defendant as a persistent felony offender, and find that a term of 6 to 12 years is an appropriate sentence under these circumstances.

MEMORANDUM DECISION.