PEOPLE v. RIVERA (1999)

Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered September 4, 1996, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him to concurrent terms of 6 1/2 to 13 years, unanimously affirmed.

 The court properly ruled that defendant's proposed agency defense would open the door to elicitation of the nature and underlying facts of his three prior convictions arising out of drug sales.   We note that the court never made a final ruling on this issue, but only indicated how it might rule were defendant to give the proposed testimony, and it specifically deferred making a decision until defendant testified, an event which never occurred.   In any event, the court properly exercised its discretion in indicating how it might rule were defendant to testify as proposed, because defendant's agency defense would have rendered his prior convictions highly probative (see, People v. Seay, 176 A.D.2d 192, 574 N.Y.S.2d 316, lv. denied 79 N.Y.2d 864, 580 N.Y.S.2d 736, 588 N.E.2d 771).

 We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.