PEOPLE v. AGOSTO (1998)

Judgment, Supreme Court, Bronx County (Robert Straus, J.), rendered November 7, 1996 convicting defendant, after a jury trial, of two counts of criminal sale of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, to two consecutive prison terms of 5 to 10 years to be served concurrently with two concurrent prison terms of 1 year, unanimously modified, as a matter of discretion in the interest of justice, to direct that the terms of 5 to 10 years be served concurrently to each other, and otherwise affirmed.

 The court's preclusion of cross-examination of a police witness concerning the level of charges originally brought against the two buyers arrested with defendant was a proper exercise of discretion.   The fact that the two buyers were originally charged with possession with intent to sell, but were later prosecuted for only misdemeanors, was irrelevant to the issues presented at trial (People v. Gonzalez, 189 A.D.2d 701, 592 N.Y.S.2d 970, lv. denied 81 N.Y.2d 971, 598 N.Y.S.2d 772, 615 N.E.2d 229).   Those facts did not tend to establish that the police witness had a motive to lie about defendant's participation in the transactions as the seller or to inflate the charges against him (compare, People v. Rios 223 A.D.2d 390, 391-392, 636 N.Y.S.2d 753, lv. withdrawn 87 N.Y.2d 1024, 644 N.Y.S.2d 157, 666 N.E.2d 1071).

Since defendant acquiesced in the court's treatment of his application for an overnight adjournment of the trial, he failed to preserve his present claims for appellate review (see, People v. Gonzalez, 233 A.D.2d 190, 650 N.Y.S.2d 107, lv. denied 89 N.Y.2d 1093, 660 N.Y.S.2d 387, 682 N.E.2d 988), and we decline to review the claims in the interest of justice.   Were we to review them, we would find that the court's treatment of the request could not have resulted in any prejudice to defendant.

 We find the sentence excessive to the extent indicated.

MEMORANDUM DECISION.