PEOPLE v. WELLS (2008)

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered December 15, 2005, convicting defendant, after a jury trial, of attempted rape in the first degree, sexual abuse in the first degree and criminal trespass in the second degree, and sentencing him to an aggregate term of 3 1/212 years, unanimously affirmed.

 The court's Sandoval ruling permitting the prosecutor to cross-examine defendant about a prior bad act balanced the appropriate factors and was a proper exercise of discretion (People v. Hayes, 97 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002] ).  There was a good faith basis for the prosecutor's inquiry (see People v. Alamo, 23 N.Y.2d 630, 633–635, 298 N.Y.S.2d 681, 246 N.E.2d 496 [1969], cert. denied 396 U.S. 879, 90 S.Ct. 156, 24 L.Ed.2d 137 [1969] ).  The alleged bad act of sending harassing e-mails reflected a willingness to place defendant's self-interest above the interests of another person and was thus relevant to defendant's credibility (see e.g. People v. Weinstein, 254 A.D.2d 83, 680 N.Y.S.2d 204 [1998] ).

 When a deliberating juror became unavailable, defendant specifically requested that the juror be replaced by the second alternate juror rather than the first, and executed a valid written consent to such replacement.  Accordingly, defendant waived his argument that the court erred in departing from CPL 270.35(1) by seating the second alternate out of order (see People v. Acevedo, 44 A.D.3d 168, 171, 841 N.Y.S.2d 55 [2007], lv. denied 9 N.Y.3d 1004, 850 N.Y.S.2d 392, 880 N.E.2d 878 [2007] ), and there was no nonwaivable mode of proceedings error (see People v. Gajadhar, 9 N.Y.3d 438, 850 N.Y.S.2d 377, 880 N.E.2d 863 [2007] ).