People v. Meli
531 N.Y.S.2d 70
N.Y. App. Div.
1988
Check Treatment

Judgment unanimously affirmed.

Memorandum: Defendant was convicted after a jury trial of assault in the second degree and criminal possession of a *939weapon in the fourth degree and was sentenced to concurrent terms of five years’ probation on each count. Defendant contends that the court erred in permitting him to be cross-examined with respect to two 11-year-old convictions for criminal possession of a forged instrument, that the verdict was against the weight of the evidence, and that the sentence of five years’ probation was illegal with respect to the misdemeanor weapon possession count.

The People concede the illegality of the probationary sentence on the misdemeanor but assert that it would be useless for us to remand for resentencing because defendant has been discharged from probation. We agree and conclude that this issue has been rendered moot.

With respect to the Sandoval issue (People v Sandoval, 34 NY2d 371), defendant’s testimony was in direct conflict with that of the victim and thus the case hinged on the issue of credibility. The extent to which prior convictions bear on the issue of a defendant’s credibility is a question entrusted to the sound discretion of the court, reviewable only for clear abuse of discretion (see, People v Duffy, 36 NY2d 258, 262-263, cert denied 423 US 861). Here, defendant’s prior convictions for possession of forged instruments were probative of his capacity for truth and veracity (see, People v Sandoval, supra, at 375-376). The court determined that the probative value of those convictions on the question of credibility was not outweighed by their remoteness in time and we find that determination was not an abuse of discretion. We have examined the remaining issue raised by the defendant and find it to be without merit. (Appeal from judgment of Supreme Court, Erie County, Bonadio, J.—assault, second degree, and another charge.) Present—Doerr, J. P, Denman, Boomer, Green and Balio, JJ.