People v Bethea

People v Bethea 2015 NY Slip Op 07588 Decided on October 20, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 20, 2015
Gonzalez, P.J., Mazzarelli, Richter, Manzanet-Daniels, JJ.
15909 1185/10

[*1] The People of the State of New York, Respondent,

v

Robert Bethea, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Frances A. Gallagher of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein of counsel), for respondent.

Judgment, Supreme Court, New York County (Arlene D. Goldberg, J.), rendered May 12, 2011, as amended May 26, 2011, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, tampering with physical evidence and resisting arrest, and sentencing him, as a second felony drug offender, to an aggregate term of four years, unanimously affirmed.

Defendant did not preserve his challenges to the court's determination, made after its Sandoval ruling, that the People would be permitted to elicit otherwise precluded aspects of defendant's criminal history if he raised claims of "lack of knowledge," or that he believed he was selling imitation drugs, and we decline to review them in the interest of justice. As an alternative holding, we find that the court's warning was an appropriate exercise of discretion. The court properly found that by placing his intent or state of mind in issue, defendant would open the door to certain precluded matters (see People v Ingram, 71 NY2d 474, 479-480 [1988]). In any event, any error in the court's warning was harmless (see People v Grant, 7 NY3d 421, 424-425 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 20, 2015

CLERK