Opinion
April 25, 1995
Appeal from the Supreme Court, Bronx County, Frank Torres, J., John Stackhouse, J.
Upon reviewing the evidence before the suppression court (People v Rivera, 171 A.D.2d 560, 561, lv denied 78 N.Y.2d 973), we find no merit in defendant's contention that his warrantless arrest inside the doorway of a building was violative of his right to be free of any unreasonably search and seizure (Payton v New York, 445 U.S. 573), since defendant failed to sustain his burden at the Mapp hearing that he had a legitimate expectation of privacy in the premises (People v Ortiz, 83 N.Y.2d 840, 842).
Defendant's claim that the court erred in admitting evidence of several uncharged sales and improperly instructed the jury with respect to such evidence is unpreserved for appellate review as a matter of law, defendant having failed to object to the admission of such evidence, or take exception to the court's instructions to the jury (People v Cuesta, 199 A.D.2d 101, 102, lv denied 83 N.Y.2d 870), and we decline to review it in the interest of justice. Were we to consider the claim we would find that because the defendant's intent was at issue with respect to the charges of possession with intent to sell, evidence of the uncharged sales was admissible as to those charges (People v Lopez, 200 A.D.2d 525, lv denied 83 N.Y.2d 1005). The court's failure to additionally instruct the jury that such evidence may not be considered with respect to the charge of criminal sale in the third degree of narcotics was harmless error in light of the overwhelming evidence of defendant's guilt of that crime and defendant's acquittal of both possession counts having intent to sell as an element thereof.
We find no abuse of discretion in sentencing defendant as a persistent felony offender, which disposition is fully supported by his extensive criminal record, to which the sentencing court specifically referred (People v Ennis, 197 A.D.2d 404, 405, lv denied 82 N.Y.2d 849). The fact that defendant received a harsher sentence after trial than he was offered during plea negotiations does not indicate that he was punished for exercising his right to a trial (supra, at 405, citing, inter alia, People v Pena, 50 N.Y.2d 400, 411-412, cert denied 449 U.S. 1087).
Concur — Ellerin, J.P., Rubin, Ross, Nardelli and Williams, JJ.