Opinion
Filed May 10, 2000.
Appeal from Judgment of Ontario County Court, Harvey, J. — Criminal Possession Controlled Substance, 3rd Degree.
Judgment unanimously affirmed.
Present: PIGOTT, JR., P. J., GREEN, WISNER AND SCUDDER, JJ.
Memorandum:
Defendant was convicted following a jury trial of criminal possession of a controlled substance in the third degree (Penal Law § 220.16) arising out of the execution of a search warrant at an apartment in the City of Geneva. There is no merit to the contention of defendant that he was deprived of a fair trial by the admission of evidence of uncharged crimes. It is well established that evidence of uncharged crimes may be admitted to establish the intent element of a crime ( see, People v. Alvino, 71 N.Y.2d 233, 245; People v. Molineux, 168 N.Y. 264, 293-294). Here, evidence of uncharged drug transactions was properly admitted as proof that defendant possessed the cocaine found inside the apartment with the intent to sell it ( see, People v. Alvino, supra, at 245-246; People v. Villanueva, ___ A.D.2d ___ [decided Feb. 14, 2000]; People v. Maddox, 256 A.D.2d 1066, 1067). The probative value of such evidence far exceeded its potential for prejudice ( see, People v. Alvino, supra, at 242), and any prejudice to defendant was minimized by County Court's limiting instructions ( see, People v. Maddox, supra, at 1067; People v. Rodriguez, 224 A.D.2d 346, lv denied 88 N.Y.2d 969). In addition, the testimony that defendant threatened a woman who was expected to testify against him, although evidence of a prior bad act, was properly admitted on the issue of consciousness of guilt ( see, People v. Pugh, 236 A.D.2d 810, 812, lv denied 89 N.Y.2d 1099; People v. Reyes, 162 A.D.2d 357, lv denied 76 N.Y.2d 896).
Defendant was not denied due process of law by any delay in the prosecution of the appeal because he failed to demonstrate any prejudice as a result of such delay ( see, People v. Cousart, 58 N.Y.2d 62, 68; People v. Nelli, 259 A.D.2d 1046, lv denied 93 N.Y.2d 927; People v. Foley, 203 A.D.2d 952, lv denied 83 N.Y.2d 967).
The fact that defendant was sentenced to a term of incarceration greater than that offered as part of a pretrial plea offer does not render the sentence unduly harsh ( see, People v. Rogers, 245 A.D.2d 1041, 1041-1042), nor is the sentence otherwise unduly harsh or severe.
We further conclude that defendant received effective assistance of counsel ( see, People v. Baldi, 54 N.Y.2d 137, 147). The contention that defendant was deprived of a fair trial by the prosecutor's objections and prejudicial comments has not been preserved for our review ( see, CPL 470.05). In any event, we conclude that the prosecutor's conduct did not deprive defendant of a fair trial ( see, People v. Greening, 254 A.D.2d 739, 740, lv denied 92 N.Y.2d 1032).