PEOPLE v. FELTON (2008)

 Defendant appeals from a judgment convicting him, upon a jury verdict, of driving while intoxicated as a felony (Vehicle and Traffic Law § 1192[3];  § 1193[1][c] [former (i) ] ).   Contrary to the contention of defendant, Supreme Court's Sandoval ruling does not constitute an abuse of discretion.   Pursuant to that ruling, the court determined that defendant could be cross-examined concerning a prior conviction of boating while intoxicated involving conduct that occurred a few years prior to the arrest that led to the conviction on this appeal while the court excluded several other driving while intoxicated convictions (see generally People v. Hagin, 238 A.D.2d 714, 716, 657 N.Y.S.2d 105, lv. denied 90 N.Y.2d 894, 662 N.Y.S.2d 436, 685 N.E.2d 217).   In any event, any error in the court's Sandoval ruling is harmless.   The record reflects that defendant did not testify based on the Sandoval ruling but, “assuming that he did testify, there was simply no possibility-let alone a significant probability-that his testimony would have led to an acquittal” (People v. Grant, 7 N.Y.3d 421, 425, 823 N.Y.S.2d 757, 857 N.E.2d 52).   Defendant further contends that he was deprived of effective assistance of counsel because defense counsel was unable to limit the scope of potential cross-examination.   Although “a single error may qualify as ineffective assistance,” here there was no such error (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213).   Defense counsel objected to the potential cross-examination and, in any event, we have concluded herein that the court's Sandoval ruling was proper.

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

MEMORANDUM: