PEOPLE v. LEE (2005)

Appeal from a judgment of the County Court of Greene County (Pulver Jr., J.), rendered April 28, 1998, upon a verdict convicting defendant of four counts of the crime of assault in the second degree.

Following a jury trial, defendant was convicted as charged of four counts of assault in the second degree for his conduct on March 5, 1997 in assaulting and causing injuries to two correction officers while an inmate at Coxsackie Correctional Facility in Greene County.   Three correction officers testified about the incident.   The first officer testified that he was escorting defendant, who was agitated, up a stairwell to his cell for keeplock when defendant punched him and then charged at him;  during the ensuing struggle, they fell down a flight of stairs, striking another officer.   Defendant continued to throw punches, hitting the second officer in the head until he was subdued by a response team.   Defendant claimed self-defense, testifying that the struggle was the result of the first officer's unprovoked assault on him in the stairwell.   Sentenced as a second felony offender to two consecutive seven-year terms of imprisonment and two concurrent seven-year terms of imprisonment, defendant now appeals.   We affirm.

 Initially, defendant's contention that County Court failed to rule on his pretrial request for a Sandoval ruling is unpreserved, as defendant did not raise this claim at trial (see CPL 470.05[2];  People v. Ricks, 269 A.D.2d 851, 851, 703 N.Y.S.2d 808 [2000], lv. denied 94 N.Y.2d 952, 710 N.Y.S.2d 8, 731 N.E.2d 625 [2000] ).   In any event, a review of the Sandoval conference as a whole reflects that the court implicitly granted the prosecutor's request that, should defendant testify, inquiry could be made of defendant regarding his prior felony convictions and sentences for two robberies and attempted sale of cocaine, with brief, reasonable inquiry into the nature of the crimes, and denied defendant's request to further limit the inquiry.   While the court declined to further delineate the permissible boundaries of the inquiry, indicating it would monitor the questions for compliance, we find the court provided the defense with sufficient advance knowledge of the scope of cross-examination (see People v. Sandoval, 34 N.Y.2d 371, 375, 357 N.Y.S.2d 849, 314 N.E.2d 413 [1974] ).

As contemplated by that ruling, when defendant testified, offering a sharply conflicting version of the incident, thereby placing his credibility in issue, the prosecutor briefly asked him about his prior convictions, which were not similar to the current charges.   The prosecutor carefully used the convictions solely to impeach defendant's credibility as a witness, and virtually no details were elicited about their underlying facts, and we discern no abuse of discretion (see People v. Hayes, 97 N.Y.2d 203, 207, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002];  People v. Beverly, 6 A.D.3d 874, 876, 775 N.Y.S.2d 409 [2004], lv. denied 3 N.Y.3d 637, 782 N.Y.S.2d 408, 816 N.E.2d 198 [2004];  People v. Willis, 282 A.D.2d 882, 883, 725 N.Y.S.2d 415 [2001], lv. denied 96 N.Y.2d 869, 730 N.Y.S.2d 44, 754 N.E.2d 1127 [2001] ).

 Defendant's claims of prosecutorial misconduct based upon certain comments during summation are not preserved, as no objection was raised to them at trial (see CPL 470.05[2];  People v. Jenkins, 300 A.D.2d 751, 753, 751 N.Y.S.2d 648 [2002], lv. denied 99 N.Y.2d 615, 757 N.Y.S.2d 826, 787 N.E.2d 1172 [2003] ).   Nor is any remedial action warranted as a matter of discretion in the interest of justice, as the prosecutor's comments did not constitute improper vouching for the officers' credibility or denigration of the defense but, rather, constituted fair response to defendant's testimony and the defense theory, including defense counsel's summation remarks impugning the officers' credibility (see People v. Ruiz, 8 A.D.3d 831, 778 N.Y.S.2d 559 [2004], lv. denied 3 N.Y.3d 711, 785 N.Y.S.2d 39, 818 N.E.2d 681 [2004];  cf. People v. Ashwal, 39 N.Y.2d 105, 109-110, 383 N.Y.S.2d 204, 347 N.E.2d 564 [1976] ).

 Additionally, as defendant was convicted after a trial, his challenge to the denial of his motion directed at the sufficiency of the proof before the grand jury is precluded (see CPL 210.30[6];  People v. Young, 296 A.D.2d 588, 589, 746 N.Y.S.2d 195 [2002], lvs. denied 99 N.Y.2d 536, 538, 541, 752 N.Y.S.2d 597, 599, 602, 782 N.E.2d 575, 577, 580 [2002];  People v. Bey, 179 A.D.2d 905, 906-907, 579 N.Y.S.2d 187 [1992], lvs. denied 79 N.Y.2d 918, 582 N.Y.S.2d 78, 590 N.E.2d 1206, 79 N.Y.2d 1046, 584 N.Y.S.2d 1014, 596 N.E.2d 412 [1992] ).

We have considered defendant's remaining contentions and find they are either unpreserved or without any merit.

ORDERED that the judgment is affirmed.

SPAIN, J.

CARDONA, P.J., CREW III, PETERS and CARPINELLO, JJ., concur.