PEOPLE v. CHISHOLM III (2001)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Corso, J.), rendered April 29, 1999, convicting him of criminal possession of a controlled substance in the third degree (two counts) and criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 During a pre-trial Sandoval hearing (see, People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413), the court ruled that the prosecutor could not cross-examine the defendant about a 1994 conviction of attempted criminal sale of a controlled substance in the third degree, except to ask if he had been convicted of a felony that year.   However, the court warned the defendant that if he “opened the door”, the People could ask him about the nature of the conviction.

 When the defendant took the stand and asserted an agency defense, he opened the door to this evidence (see, People v. Calvano, 30 N.Y.2d 199, 331 N.Y.S.2d 430, 282 N.E.2d 322;  People v. Rodriguez, 193 A.D.2d 705, 598 N.Y.S.2d 48;  People v. Portalatin, 126 A.D.2d 577, 510 N.Y.S.2d 696;  see also, People v. Sanchez, 213 A.D.2d 566, 625 N.Y.S.2d 47;  People v. Castaneda, 173 A.D.2d 349, 569 N.Y.S.2d 719).   In addition, the defendant asserted on cross-examination that he did not “have the heart to deal” drugs, but was merely a user of drugs.   By this deliberate attempt to mislead the jury, the defendant put in issue whether or not he was disposed to sell drugs (see, People v. Fardan, 82 N.Y.2d 638, 607 N.Y.S.2d 220, 628 N.E.2d 41;  see also, People v. Rodriguez, 85 N.Y.2d 586, 627 N.Y.S.2d 292, 650 N.E.2d 1293;  People v. Johnson, 203 A.D.2d 588, 611 N.Y.S.2d 24;  People v. Centeno, 249 A.D.2d 151, 671 N.Y.S.2d 249;  People v. Marsh, 248 A.D.2d 743, 669 N.Y.S.2d 707;  People v. Delancey, 173 A.D.2d 838, 571 N.Y.S.2d 61;  People v. Santiago, 169 A.D.2d 557, 564 N.Y.S.2d 412).   Under the circumstances, the court properly modified its Sandoval ruling.   The court also correctly instructed the jury that proof of other crimes could be considered only in assessing the defendant's credibility, and not in deciding whether he had committed the crimes charged (see, People v. Leggett, 221 A.D.2d 371, 633 N.Y.S.2d 349).

The defendant's remaining contentions, including those raised in his supplemental pro se brief, are without merit.