| People v Sivels |
| 2014 NY Slip Op 00693 [114 AD3d 708] |
| February 5, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Milton Sivels, Also Known as Milton Silvels,Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas Constant of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Efman, J.), rendered April 17, 2009, convicting him of criminal sale of a controlledsubstance in the third degree and criminal possession of a controlled substance in thethird degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, he was not deprived of a fair trial by theprosecutor's cross-examination of him. The cross-examination did not constitutebadgering (cf. People v Bhupsingh, 297 AD2d 386, 387-388 [2002]), nor did theprosecutor declare her personal disbelief in and disapproval of the defendant's answers(cf. People v Demko, 71 AD2d 608 [1979]; People v Sharp, 71 AD2d1034 [1979]). The prosecutor's vigorous cross-examination of the defendant wasprobative with respect to the crimes charged and the defendant's veracity.
The defendant failed to preserve for appellate review his contentions that part of thetestimony offered by Detective Demato constituted expert testimony, in violation of thecourt's ruling that he was to testify only as a fact witness, or that his testimony constitutedan impermissible lay opinion (see CPL 470.05 [2]). In any event, any error inadmitting the testimony was harmless, as there was overwhelming evidence of thedefendant's guilt on the charges and no significant probability that the error contributedto his convictions (see People v Johnson, 57 NY2d 969, 971 [1982]; People vCrimmins, 36 NY2d 230 [1975]; People v Ukasoanya, 101 AD3d 911 [2012]).
Contrary to the defendant's contention raised in his pro se supplemental brief, theCounty Court properly permitted the prosecutor to elicit testimony about the defendant'sprior criminal drug sale convictions. Although, as the defendant contends,cross-examination about his criminal narcotics sale convictions was not permitted underthe court's pretrial Sandoval ruling (see People v Sandoval, 34 NY2d 371[1974]), the court properly ruled, pursuant to People v Molineux (168 NY 264[1901]), that the prosecutor could elicit that testimony to rebut the defendant's agencydefense (see People v Blue,107 AD3d 443 [2013]; People v Massey, 49 AD3d 462 [2008]; People vRandall, 177 AD2d 661 [1991]; [*2]People vCastaneda, 173 AD2d 349 [1991]; People v Rosario, 122 AD2d 85 [1986]).
The defendant's further contention, raised in his pro se supplemental brief, that hisattorney failed to provide effective assistance of counsel by not affording him the right totestify before the grand jury is based upon matter dehors the record and, thus, cannot bereviewed on direct appeal (seePeople v Rohlehr, 87 AD3d 603, 604 [2011]; People v Miller, 68 AD3d1135, 1135 [2009]). "The appropriate vehicle . . . to allege ineffectiveassistance of counsel grounded in allegations referring to facts outside of the. . . record is pursuant to CPL 440.10, where matters dehors the record maybe considered" (People v Rohlehr, 87 AD3d at 604 [internal quotation marksomitted]). Skelos, J.P., Lott, Cohen and Hinds-Radix, JJ., concur.