PEOPLE v. NUNEZ (1998)

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 71/212 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 A.D.2d 396, 668 N.Y.S.2d 17, lv. denied 91 N.Y.2d 943, 671 N.Y.S.2d 723, 694 N.E.2d 892).   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 A.D.2d 105, 657 N.Y.S.2d 599, lv. denied 90 N.Y.2d 899, 662 N.Y.S.2d 442, 685 N.E.2d 223).   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 N.Y.2d 1140, 490 N.Y.S.2d 724, 480 N.E.2d 338).   We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.