PEOPLE v. CLARK

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

The PEOPLE of the State of New York, Respondent, v. Thomas CLARK, Defendant-Appellant.

Decided: May 18, 2000

WILLIAMS, J.P., TOM, MAZZARELLI and BUCKLEY, JJ. Christopher Sanders, for Respondent. Judy C. Seiff, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered October 1, 1998, 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 10 to 20 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to a term of 7 1/212 to 15 years, and otherwise affirmed.

 The court properly modified its Sandoval ruling.   The original ruling permitted the People to elicit defendant's conviction of criminal facilitation but precluded the People from eliciting that a drug sale was the underlying crime that defendant facilitated.   Defendant testified that he was a drug user and had been convicted many times of criminal possession of drugs.   On redirect examination, he was asked whether he had ever been convicted of selling drugs, and he responded in the negative.   Defendant's testimony as to his prior record was literally true but, when viewed as a whole, it prejudiced the People by creating the misleading impression that he had never been involved in drug selling.   Accordingly, the court properly permitted the People to establish that defendant's plea of guilty of criminal facilitation involved a drug sale (see, People v. Fardan, 82 N.Y.2d 638, 646, 607 N.Y.S.2d 220, 628 N.E.2d 41).   In any event, were we to find that the modification of the Sandoval ruling was erroneous, we would find the error to be harmless.

 We find the sentence excessive to the extent indicated.

We have considered and rejected defendant's remaining arguments.

MEMORANDUM DECISION.