People v. Gibson

Feb 7, 2001
Versions:280 A.D.2d 903
720 N.Y.S.2d 438
2001 N.Y. App. Div. LEXIS 1138

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]). Contrary to defendant’s contention, County Court’s Sandoval ruling allowing the prosecutor to cross-examine defendant about the facts underlying a prior conviction of endangering the welfare of a child was not an abuse of discretion (see, People v Bennette, 56 NY2d 142, 147-148). Defendant failed to object to the prosecutor’s cross-examination of defendant and the prosecutor’s comments during summation, and thus failed to preserve for our review his contentions concerning the alleged prosecutorial misconduct (see, CPL 470.05 [2]). Contrary to defendant’s further contention, the cumulative effect of the alleged instances of prosecutorial misconduct did not deprive defendant of his right to a fair trial (see, People v Rubin, 101 AD2d 71, 77-78, lv denied 63 NY2d 711). Defendant further contends that this Court should direct reconstruction of an unrecorded bench conference that occurred during the prosecutor’s cross-examination of defendant. Defendant’s presence was not required at that bench conference because it involved only a question of law (see, People v Rodriguez, 85 NY2d 586, 590-591). Thus, there is no need for a reconstruction hearing. Finally, the fact that defendant was sentenced to a term of incarceration greater than that offered as part of a pretrial plea offer does not render the sentence unduly harsh (see, People v Maddox, 272 AD2d 884, 885, lv denied 95 NY2d 867; People v Rogers, 245 AD2d 1041, 1041-1042), nor is the sentence otherwise unduly harsh or severe. (Appeal from Judgment of Monroe County Court, Connell, J. — Criminal Possession Controlled Substance, 3rd Degree.) Present — Pigott, Jr., P. J., Hayes, Wisner, Scudder and Lawton, JJ.