Opinion
July 12, 1996
Appeal from the Oneida County Court, Buckley, J.
Present — Green, J.P., Pine, Fallon, Callahan, and Davis, JJ.
Judgment unanimously affirmed. Memorandum: There is no merit to the contention of defendant that County Court erred in allowing prosecution witnesses to testify regarding a prior uncharged drug crime. That testimony was properly admitted to prove that defendant possessed cocaine at the time in question with intent to sell ( see, People v. Hernandez, 71 N.Y.2d 233, 245-246; People v. Stephens, 209 A.D.2d 999, lv denied 84 N.Y.2d 1039). Further, the probative value of the testimony exceeded its potential prejudicial effect, and the People properly obtained a prior ruling on its admissibility ( see, People v. Ventimiglia, 52 N.Y.2d 350).
Defendant was not deprived of a fair trial when a prosecution witness referred to the fact that defendant was on parole at the time of his arrest. The court immediately instructed the jury to disregard that testimony, thereby ameliorating any possible prejudice to defendant ( see, People v. Arce, 42 N.Y.2d 179, 187; People v. Johnson, 219 A.D.2d 809, lv denied 87 N.Y.2d 903). The contention that defendant was denied a fair trial by the prosecutor's subsequent reference to defendant's parole hearing was not preserved for our review by timely objection and, in any event, there was not a flagrant or pervasive pattern of prosecutorial misconduct such that defendant was deprived of a fair trial ( see, People v. Konigsberg, 137 A.D.2d 142, 147-148, lv denied 72 N.Y.2d 912, lv denied on reconsideration 72 N.Y.2d 1046).
Reversal is not required by defendant's absence from an inchambers Sandoval hearing because the subsequent proceeding held on the record in defendant's presence constituted a de novo Sandoval hearing ( see, People v. Russell, 191 A.D.2d 1001, lv denied 81 N.Y.2d 1019). The court did not abuse its discretion in allowing defendant to be cross-examined regarding five prior petit larceny and robbery convictions. The crimes involved dishonesty and were relevant to defendant's credibility ( see, People v. Sandoval, 34 N.Y.2d 371; People v. Rodriguez, 181 A.D.2d 841).
Defendant's contention that the evidence is insufficient to sustain the conviction of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06) is not preserved for our review ( see, CPL 470.05), and we decline to exercise our power to address it as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]).
Finally, defendant's sentence is neither unduly harsh nor severe.