Opinion
February 8, 1996
Appeal from the Supreme Court, New York County (Carol Berkman, J.).
Defendant's claim that the trial court based its Sandoval ruling on his anticipated trial testimony and punished him for seeking to offer testimony which conflicted with the People's witnesses is unpreserved as a matter of law and we decline to review it in the interest of justice. Were we to review it, we would find it to be without merit since the court properly balanced the probative value of defendant's prior bad acts against any prejudice to him, and properly considered "the effect on the validity of the fact-finding process if the defendant [did] not testify out of fear of the impact of the impeachment" ( People v. Sandoval, 34 N.Y.2d 371, 378).
Defendant's contention that the court abused its discretion in modifying its Sandoval ruling to allow cross-examination into the underlying facts of a 1989 narcotics related conviction is also unpreserved ( People v. Russtic, 211 A.D.2d 543), and we decline to review it in the interest of justice. Were we to review it, we would find that defendant's own testimony with respect to that conviction opened the door to the prosecutor's inquiry ( supra, at 543, citing People v. Fardan, 82 N.Y.2d 638, 646; People v. Ferguson, 190 A.D.2d 610, lv denied 81 N.Y.2d 970). In any event, in a nonjury trial, the court is deemed capable of disregarding prejudicial matter ( People v. Moreno, 70 N.Y.2d 403, 406). In light of defendant's criminal history, we perceive no abuse of discretion in sentencing.
Concur — Ellerin, J.P., Rubin, Nardelli, Tom and Mazzarelli, JJ.