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

The PEOPLE of the State of New York, Respondent, v. Shawn SMITH, Defendant-Appellant.

Decided: April 10, 2001

SULLIVAN, P.J., WILLIAMS, ANDRIAS, RUBIN and FRIEDMAN, JJ. Shari R. Michels, for Respondent. Lorilee A. Vaughan, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Jeffrey Atlas, J.), rendered March 4, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 1/212 to 9 years, unanimously affirmed.

The court's Sandoval ruling 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).   Although defendant had five convictions, the court allowed the prosecutor to elicit only two of them, both of which were theft-related crimes that directly reflected on defendant's credibility.

Defendant's challenge to the court's “no adverse inference” charge is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the instruction did not place prejudicial emphasis on defendant's decision not to testify and did not deprive defendant of a fair trial.