Opinion
October 16, 2001.
Judgment, Supreme Court, New York County (Martin Rettinger, J. at jury trial; Arlene Silverman, J. at sentence), rendered January 5, 2000, convicting defendant, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 5 to 10 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to a term of 4½ to 9 years, and otherwise affirmed.
Richard Nahas, for respondent.
Cynthia Feathers Pro se, for defendant-appellant.
Before: Rosenberger, J.P., Nardelli, Ellerin, Lerner, Saxe, JJ.
To the extent that the prosecutor may have improperly appealed to the jurors' emotions, any prejudice was prevented by the court's prompt and thorough curative instructions.
In light of defendant's military record, we find the sentence excessive to the extent indicated.
We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief. We note that since defendant was denied leave to appeal to this Court from the denial of his motion to vacate judgment made pursuant to CPL 440.10, that order is not before this Court (CPL 450.15; 460.15).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.