The People, etc., respondent, v. Milton Sivels, also known as Milton Silvels, appellant. (2014)

Supreme Court, Appellate Division, Second Department, New York.

The People, etc., respondent, v. Milton Sivels, also known as Milton Silvels, appellant.

2009–05349 (Ind.No. 2141–08)

Decided: February 05, 2014

PETER B. SKELOS, J.P. PLUMMER E. LOTT JEFFREY A. COHEN SYLVIA O. HINDS–RADIX, JJ.

Richard L. Herzfeld, P.C., New York, N.Y., for appellant, and appellant pro se. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas Constant of counsel), for respondent. Contrary to the defendant's contention raised in his pro se supplemental brief, the County Court properly permitted the prosecutor to elicit testimony about the defendant's prior criminal drug sale convictions.   Although, as the defendant contends, cross-examination about his criminal narcotics sale convictions was not permitted under the court's pretrial Sandoval ruling (see People v Sandoval, 34 N.Y.2d 371), the court properly ruled, pursuant to People v Molineux (168 N.Y. 264), that the prosecutor could elicit that testimony to rebut the defendant's agency defense (see People v Blue, 107 AD3d 443;  People v Massey, 49 AD3d 462;  People v Randall, 177 A.D.2d 661;  People v Castaneda, 173 A.D.2d 349;  People v Rosario, 122 A.D.2d 85). The defendant's further contention, raised in his pro se supplemental brief, that his attorney failed to provide effective assistance of counsel by not affording him the right to testify before the grand jury is based upon matter dehors the record and, thus, cannot be reviewed on direct appeal (see People v Rohlehr, 87 AD3d 603, 604;  People v Miller, 68 AD3d 1135, 1135).  “The appropriate vehicle ․ to allege ineffective assistance of counsel grounded in allegations referring to facts outside of the ․ record is pursuant to CPL 440.10, where matters dehors the record may be considered” (People v Rohlehr, 87 AD3d at 604 [internal quotation marks omitted] ).