PEOPLE v. RODRIGUEZ

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

The PEOPLE of the State of New York, Respondent, v. Luis RODRIGUEZ, Defendant-Appellant.

Decided: June 26, 2001

SULLIVAN, P.J., ELLERIN, WALLACH, RUBIN and BUCKLEY, JJ. Christopher P. Marinelli, for Respondent. Richard L. Herzfeld, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered May 11, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 5 1/212 to 11 years, unanimously affirmed.

The court's Sandoval ruling, which permitted inquiry into whether defendant had been convicted of one felony and three misdemeanors since 1986, while precluding inquiry into the nature or underlying facts of those convictions and any inquiry into an older felony conviction, balanced the appropriate factors and was a proper exercise of discretion (see, People v. Walker, 83 N.Y.2d 455, 458-459, 611 N.Y.S.2d 118, 633 N.E.2d 472).

The prosecutor's statement that defense counsel was providing two competing arguments was a fair response to counsel's summation (see, People v. Salaman, 231 A.D.2d 464, 647 N.Y.S.2d 739, lv. denied 89 N.Y.2d 929, 654 N.Y.S.2d 731, 677 N.E.2d 303).   The remark could not have been construed by the jury as shifting the burden of proof, particularly in light of the court's charge on that subject (see, People v. Planca, 225 A.D.2d 470, 471, 639 N.Y.S.2d 922, lv. denied 88 N.Y.2d 968, 647 N.Y.S.2d 722, 670 N.E.2d 1354).   Defendant's remaining challenges to the People's summation are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would find no basis for reversal (see, People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724;  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001, lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977).