PEOPLE v. HEREDIA

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

The PEOPLE of the State of New York, Respondent, v. Dios HEREDIA, Defendant-Appellant.

Decided: January 21, 1997

Before SULLIVAN, J.P., and WALLACH, RUBIN, TOM and ANDRIAS, JJ. Patrick E. Cox, for Respondent. Susan E. Kriete, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Jerome Hornblass, J.), rendered May 4, 1994, 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 to concurrent terms of 5 1/2 to 11 years, unanimously affirmed.

After the codefendant falsely denied having sold cocaine in the past, the court properly modified its Sandoval ruling and permitted the prosecutor to inquire about the underlying facts of the codefendant's previous felony drug conviction (see, People v. Green, 207 A.D.2d 318, 615 N.Y.S.2d 685, lv. denied 84 N.Y.2d 935, 621 N.Y.S.2d 532, 645 N.E.2d 1232).   Defendant was not prejudiced by the ruling.   The court correctly instructed the jurors to separately consider the evidence against each defendant, including evidence of a prior conviction which could be considered when assessing the credibility of the respective defendant.   Defendant's claim that the jury used the details of the codefendant's past crimes as either evidence of propensity against defendant or to evaluate defendant's credibility is unsupported and, indeed, speculative.

MEMORANDUM DECISION.