People v. Nunez

Sep 22, 1998
Versions:253 A.D.2d 685
678 N.Y.S.2d 91
1998 N.Y. App. Div. LEXIS 9593

Judgment, Supreme Court, New York County (Paul Bookson, J.), rendered January 5, 1995, 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 71/2 to 15 years, unanimously affirmed.

Each of defendant’s claims is unpreserved and we decline to review any of them in the interest of justice. Since the People’s cross-examination of defendant about his pretrial silence was exploited by defendant to his advantage, the error, if any, does not warrant our review in the interest of justice (see, People v Morales, 246 AD2d 396, lv denied 91 NY2d 943). The People did not violate the court’s Sandoval ruling, since defendant’s denial of drug-related activity opened the door to the challenged questions (People v Wilkens, 239 AD2d 105, lv denied 90 NY2d 899). The challenged portions of the prosecutor’s summation were fair response to defendant’s summation. Imposition, without objection, of a second felony offender sentence despite the prosecutor’s failure to file a predicate felony statement does not merit returning the case for resentence, since the sentencing court substantially complied with the statutory purposes of CPL 400.21 (see, People v Bouyea, 64 NY2d 1140). We perceive no abuse of sentencing discretion. Concur — Rosenberger, J. P., Ellerin, Nardelli and Williams, JJ.