PEOPLE v. THIGPEN III (2006)

 Defendant appeals from a judgment convicting him after a jury trial of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ) and criminal possession of a controlled substance in the third degree (§ 220.16[1] ).   Defendant contends that County Court erred in sua sponte permitting the jury to take two exhibits into the jury room during deliberations.   He waived that contention, however, inasmuch as defense counsel stated on the record that he did not object (see generally People v. Hicks, 12 A.D.3d 1044, 1045, 784 N.Y.S.2d 451, lv. denied 4 N.Y.3d 799, 795 N.Y.S.2d 174, 828 N.E.2d 90).   In any event, those exhibits were admitted in evidence at trial, and thus the jury was entitled to take them into the jury room during deliberations (see CPL 310.20[1] ).   Defendant further contends that the court erred in sustaining the prosecutor's objection to a question asked by defense counsel during his direct examination of defendant.   That contention is not preserved for our review, however, because the record establishes that defense counsel withdrew his question following the court's ruling (see CPL 470.05[2];  cf. People v. Chavez, 275 A.D.2d 888, 888-889, 713 N.Y.S.2d 386, lv. denied 95 N.Y.2d 962, 722 N.Y.S.2d 479, 745 N.E.2d 399).   In any event, the information sought by defense counsel in asking that question was irrelevant, and thus the court properly sustained the prosecutor's objection.

 The further contention of defendant that he was denied a fair trial because the prosecutor elicited testimony from him concerning prior bad acts without seeking a ruling pursuant to People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59 also lacks merit.   The record establishes that the testimony at issue was nonresponsive to the prosecutor's question and, instead, was volunteered by defendant during a proper line of questioning by the prosecutor.   Thus, defendant was not deprived of a fair trial by any action on the part of the prosecutor (see People v. Vasquez, 88 N.Y.2d 561, 577-578, 647 N.Y.S.2d 697, 670 N.E.2d 1328;  see generally People v. Zanghi, 256 A.D.2d 1120, 684 N.Y.S.2d 804, lv. denied 93 N.Y.2d 881, 689 N.Y.S.2d 443, 711 N.E.2d 657;  People v. Holton, 225 A.D.2d 1021, 640 N.Y.S.2d 708, lv. denied 88 N.Y.2d 986, 649 N.Y.S.2d 393, 672 N.E.2d 619).   We further reject the contention of defendant that he was denied effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Defendant's contention concerns disagreements with defense counsel's trial tactics, and defendant has failed to establish “the absence of strategic or other legitimate explanations” for those tactics (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698;  see People v. Benevento, 91 N.Y.2d 708, 712-713, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Dennis, 206 A.D.2d 843, 844, 616 N.Y.S.2d 121, lv. denied 84 N.Y.2d 867, 618 N.Y.S.2d 12, 642 N.E.2d 331).

 Finally, we conclude that the sentence of 3 1/212 to 7 years of imprisonment is illegal inasmuch as defendant was sentenced as a second felony offender on two class B drug felonies, which in 2003 required a minimum indeterminate sentence of 4 1/212 to 9 years (see Penal Law § 70.06[3][b];  [4][b];  cf. § 70.70[3][b][i] ).  “Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand” (People v. Price, 140 A.D.2d 927, 928, 529 N.Y.S.2d 607;  see People v. Swan, 158 A.D.2d 158, 163, 557 N.Y.S.2d 791, lv. denied 76 N.Y.2d 991, 563 N.Y.S.2d 780, 565 N.E.2d 529).   We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Orleans County Court for resentencing.

MEMORANDUM: