| People v Cooper |
| 2010 NY Slip Op 08784 [78 AD3d 593] |
| November 30, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v KevinCooper, Appellant. |
—[*1]
Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered November 19, 2009,as amended December 8, 2009, convicting defendant, after a jury trial, of criminal sale of a controlledsubstance in the third degree, and sentencing him, as a second felony drug offender whose prior felonyconviction was a violent felony, to a term of six years, unanimously affirmed.
The court properly exercised its discretion when, prior to defendant taking the stand, it modified itsoriginal Sandoval ruling in light of its further evaluation of the credibility issues to be raised bydefendant's proposed testimony asserting an agency defense (see People v Ramos, 255 AD2d203 [1998], lv denied 93 NY2d 856 [1999]). While we agree with defendant that theunderlying facts of his prior conviction for fraudulent accosting, in which he sold imitation narcotics to anundercover officer, were not admissible under a Molineux theory to rebut defendant's agencydefense, they were nevertheless admissible to impeach his credibility. The modified ruling balanced theappropriate factors and was a proper exercise of discretion (see People v Hayes, 97 NY2d203 [2002]). Although the present case also involved an undercover sale, the facts of the fraudulentaccosting case were highly probative of defendant's credibility and were not unduly prejudicial.Moreover, defendant's testimony that he did not like to "cheat people" enhanced the impeachment valueof the facts underlying his fraudulent accosting conviction. Concur—Gonzalez, P.J., Mazzarelli,Nardelli, Renwick and DeGrasse, JJ.