Opinion
October 28, 1991
Appeal from the Supreme Court, Richmond County (Felig, J.).
Ordered that the judgment is affirmed.
The defendant contends that the evidence adduced at the trial was legally insufficient to establish his guilt of criminal sale of a controlled substance in the third degree in that the People failed to establish the requisite intent to sell a narcotic drug. The record shows that two police officers were driving an unmarked car very slowly through a parking lot in the vicinity of 14 Roxbury Street, Staten Island, when the defendant walked to the car and asked, "What are you looking for? Are you looking for something? * * * I have one nickel (indicating a five dollar vial of crack [cocaine]) left". The defendant said "Well, it's good. Look at it", took a vial of crack out of his pants pocket and handed it to one of the officers. Viewing the evidence adduced at trial in a light most favorable to the People (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt is not against the weight of the evidence (see, CPL 470.15).
The defendant also contends that the trial court's Sandoval ruling (see, People v. Sandoval, 34 N.Y.2d 371), which permitted cross-examination into the underlying facts of his conviction for grand larceny in the third degree and attempted robbery in the first degree, deprived him of a fair trial. We disagree. It is well settled that the extent to which the prosecution may be allowed to use prior convictions to impeach a defendant's credibility is a matter of discretion generally resting with the trial court (see, People v. Bennette, 56 N.Y.2d 142; People v Sandoval, supra; People v. Scott, 118 A.D.2d 881). In this case, the court did not improvidently exercise its discretion (see, People v. Branch, 155 A.D.2d 475; People v. Torres, 110 A.D.2d 794). Grand larceny and attempted robbery are not so similar to the crime for which the defendant was convicted that inquiry with respect to those crimes unduly prejudiced him (see, People v Sandoval, supra). Moreover, the fact that his prior convictions were 9 and 10 years old did not render them so remote in time that they had no bearing on his credibility at the trial (see, People v. Edwards, 159 A.D.2d 583; People v. Ricks, 135 A.D.2d 844; People v. Salcedo, 133 A.D.2d 129; People v. Scott, supra).
The defendant, in failing to controvert the constitutionality of his prior felony conviction at the time of sentencing, has waived his present claim that his predicate felony conviction was unconstitutionally obtained (see, People v. Oliver, 63 N.Y.2d 973; People v. Andre, 132 A.D.2d 560; People v. Ubiles, 130 A.D.2d 788; People v. Banks, 117 A.D.2d 611). In any event, the defendant was properly sentenced as a second felony offender (see, People v Harris, 61 N.Y.2d 9, 17).
Finally, the defendant's sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80, 85). Thompson, J.P., Kunzeman, Lawrence and Miller, JJ., concur.