| People v Walker |
| 2009 NY Slip Op 06884 [66 AD3d 1331] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JamesWalker, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedApril 26, 2006. The judgment convicted defendant, upon a jury verdict, of criminal sale of acontrolled substance in the third degree (two counts) and criminal possession of a controlledsubstance in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict oftwo counts each of criminal sale of a controlled substance in the third degree (Penal Law §220.39 [1]) and criminal possession of a controlled substance in the third degree (§ 220.16[1]). His sole contention on appeal is that County Court's Sandoval ruling constitutes anabuse of discretion. By failing to object to the court's ultimate Sandoval ruling,defendant failed to preserve that contention for our review (see People v Miller, 59 AD3d 1124, 1125 [2009], lv denied12 NY3d 819 [2009]; People vPonder, 19 AD3d 1041, 1043 [2005], lv denied 5 NY3d 809 [2005]; People v O'Connor, 19 AD3d1154, 1154-1155 [2005], lv denied 5 NY3d 831 [2005]). In any event, we concludethat defendant's contention lacks merit.
Contrary to defendant's contention, the record establishes that the court considered therelevant factors in making its ruling. Indeed, in permitting inquiry into defendant's history oftheft-related offenses while precluding inquiry into defendant's prior drug-related charges, thecourt demonstrated its "sensitivity to the particular prejudice that may result when a jury is madeaware of the fact that the defendant has previously committed crimes that are similar to thecharged crime" (People v Walker, 83 NY2d 455, 459 [1994]). Defendant's prior arrestfor robbery and grand larceny, and defendant's conviction, upon a guilty plea, of attemptedrobbery in satisfaction of those charges involve "acts of individual dishonesty" (People vSandoval, 34 NY2d 371, 377 [1974]), and such acts "are particularly relevant to the issue ofcredibility" (People v Ellis, 183 AD2d 534, 535 [1992], affd 81 NY2d 854[1993]; Sandoval, 34 NY2d at 376-377). Contrary to the further contention of defendant,the court did not err in permitting inquiry into the robbery and grand larceny charges, despite thefact that defendant's plea of guilty to attempted robbery was in satisfaction of those charges. "Adismissal in satisfaction of a plea is not an acquittal which would preclude a prosecutor frominquiring about the underlying acts of the crime[s] because it is [*2]not a dismissal on the merits" (People v Rivera, 101 AD2d981, 982 [1984], affd 65 NY2d 661 [1985]; see People v Torra, 309 AD2d 1074,1076 [2003], lv denied 1 NY3d 581 [2003]). Present—Scudder, P.J., Hurlbutt,Peradotto, Green and Gorski, JJ.