PEOPLE v. ALSTON (2006)

 On appeal from a judgment convicting him after a jury trial of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ), defendant contends that County Court erred in denying his motion for a mistrial based upon the testimony of an officer concerning a prior uncharged drug sale.   Although defendant is correct that the officer's testimony was in contravention of the court's Ventimiglia ruling, the testimony was in fact elicited by defendant during his cross-examination of the officer (see People v. Rimmen, 8 A.D.3d 1088, 778 N.Y.S.2d 379, lv. denied 3 N.Y.3d 661, 782 N.Y.S.2d 703, 816 N.E.2d 576;  People v. Kemp, 291 A.D.2d 236, 236-237, 738 N.Y.S.2d 25, lv. denied 98 N.Y.2d 652, 745 N.Y.S.2d 511, 772 N.E.2d 614;  People v. Soto, 167 A.D.2d 302, 303, 562 N.Y.S.2d 45, lv. denied 77 N.Y.2d 1001, 571 N.Y.S.2d 927, 575 N.E.2d 413).   In any event, the court's curative instruction alleviated any prejudice to defendant resulting from that testimony (see People v. Roberts, 23 A.D.3d 1086, 803 N.Y.S.2d 502).

 Defendant next contends that the court's Sandoval ruling constitutes an abuse of discretion because the court allowed the People to cross-examine defendant with respect to his three prior convictions, all of which were remote in time.   Defendant failed to object to the court's ultimate Sandoval ruling, and thus failed to preserve his contention for our review (see People v. Ponder, 19 A.D.3d 1041, 1043, 796 N.Y.S.2d 472, lv. denied 5 N.Y.3d 809, 803 N.Y.S.2d 38, 836 N.E.2d 1161;  People v. O'Connor, 19 A.D.3d 1154, 1155, 795 N.Y.S.2d 917, lv. denied 5 N.Y.3d 831, 804 N.Y.S.2d 46, 837 N.E.2d 745).   In any event, the court's ruling does not constitute an abuse of discretion. “[T]here are no per se rules requiring preclusion because of the age, nature and number of a defendant's prior crimes” (People v. Walker, 83 N.Y.2d 455, 459, 611 N.Y.S.2d 118, 633 N.E.2d 472;  see also People v. Davis [Earl], 173 A.D.2d 634, 571 N.Y.S.2d 999, lv. denied 78 N.Y.2d 964, 574 N.Y.S.2d 944, 580 N.E.2d 416).   Here, the three prior convictions were for larceny, a crime “involving dishonesty [and thus bearing] on [his] credibility,” and the court properly determined that the probative value of the evidence of those convictions outweighed the risk of prejudice to defendant (People v. Tarver, 292 A.D.2d 110, 117, 741 N.Y.S.2d 130, lv. denied 98 N.Y.2d 702, 747 N.Y.S.2d 421, 776 N.E.2d 10;  see People v. Puff, 283 A.D.2d 952, 953, 724 N.Y.S.2d 247, lv. denied 96 N.Y.2d 923, 732 N.Y.S.2d 640, 758 N.E.2d 666;  People v. Moody, 229 A.D.2d 936, 937, 645 N.Y.S.2d 375, lv. denied 89 N.Y.2d 926, 654 N.Y.S.2d 729, 677 N.E.2d 301;   Davis, 173 A.D.2d 634, 571 N.Y.S.2d 999).   Contrary to defendant's contention, the convictions were not so remote in time that they were no longer relevant (see People v. Barton, 13 A.D.3d 721, 724, 787 N.Y.S.2d 135, lv. denied 5 N.Y.3d 785, 801 N.Y.S.2d 806, 835 N.E.2d 666).   Crimes involving dishonesty “will usually have a very material relevance, whenever committed” (People v. Sandoval, 34 N.Y.2d 371, 377, 357 N.Y.S.2d 849, 314 N.E.2d 413;  see People v. Nichols, 302 A.D.2d 953, 755 N.Y.S.2d 545, lv. denied 99 N.Y.2d 657, 760 N.Y.S.2d 121, 790 N.E.2d 295).

Defendant failed to preserve for our review his further contention that he was deprived of a fair trial by prosecutorial misconduct on summation (see CPL 470.05[2];  People v. Beggs, 19 A.D.3d 1150, 1151, 796 N.Y.S.2d 826, lv. denied 5 N.Y.3d 803, 803 N.Y.S.2d 32, 836 N.E.2d 1155;  People v. Gates, 6 A.D.3d 1062, 1063, 775 N.Y.S.2d 621, lv. denied 3 N.Y.3d 659, 782 N.Y.S.2d 701, 816 N.E.2d 574).   In any event, defendant's contention is without merit, inasmuch as the comments by the prosecutor were a fair response to comments made by defense counsel on summation (see Beggs, 19 A.D.3d at 1151, 796 N.Y.S.2d 826;  People v. Aybar, 162 A.D.2d 283, 285, 556 N.Y.S.2d 875, lv. denied 76 N.Y.2d 937, 563 N.Y.S.2d 66, 564 N.E.2d 676).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: