People v. Brown

Judgment, Supreme Court, New York County (Renee White, J.), rendered February 19, 1991, convicting defendant after a jury trial of criminal possession of a controlled substance in the fifth degree, and sentencing him as a predicate felony offender to a term of 3 to 6 years, unanimously affirmed.

While an undercover narcotics team had targeted another person in defendant’s location, on the basis of a drug sale, defendant was observed holding a glassine bag of white powder. When defendant was arrested, tin foil packets and vials were recovered from his pocket. Although chemical evidence established that the glassine bag did not contain cocaine, the vials and tin foil packets did contain cocaine. On appeal, defendant challenges only the Sandoval ruling, and cross-examination of defendant which went beyond the ruling. By failing to object to the Sandoval ruling, defendant waived any claim challenging the ruling as a matter of law (People v Johnson, 169 AD2d 553, lv denied 78 NY2d 968), and we decline to review in the interest of justice. Were we to review, *420we would find that the fact that the Sandoval ruling permitted inquiry into the fact of prior misdemeanor convictions for the sale of marijuana, conduct which bears directly on defendant’s credibility, does not warrant a conclusion that defendant was unduly prejudiced (see, People v Lucas, 160 AD2d 330, lv denied 76 NY2d 860; see also, People v Cowell, 170 AD2d 343, lv denied 77 NY2d 993). While the prosecutor did inadvertently ask a single question of defendant in violation of the Sandoval ruling, the lack of an answer to the question and the court’s prompt curative instruction alleviated any prejudice. (See, 195 AD2d 420 [decided herewith].) Concur— Milonas, J. P., Rosenberger, Rubin and Nardelli, JJ.