Opinion
May 11, 1995
Appeal from the Supreme Court, New York County, Harold Rothwax, J., Mary McGowan Davis, J.
Defendant failed to show that the prejudicial effect of impeachment testimony outweighed the probative value of the evidence on the issue of credibility with respect to the court's ruling that the prosecutor could inquire as to whether he had been convicted of a misdemeanor in 1989, elicit the facts of a 1983 attempted robbery conviction, and elicit the facts of a 1986 Florida grand theft conviction (see, People v Cunningham, 160 A.D.2d 239, 240, lv denied 76 N.Y.2d 786). In reaching a compromise Sandoval ruling, the court properly balanced its decision by excluding inquiry with respect to the firing of shots during defendant's flight from the 1983 attempted robbery and the defendant's admission that he possessed a gun.
Further, the court properly delayed its decision on how the prosecutor could term the 1986 Florida conviction since "the court is required only to delineate the crimes which may be used for impeachment purposes" (People v Webb, 159 A.D.2d 289, lv denied 76 N.Y.2d 744).
Defendant's pro se claim that he was denied effective assistance of counsel because defense counsel did not raise an agency defense is meritless. The issue is unreviewable on this record and defendant did not raise it in a CPL article 440 motion. Moreover, no reasonable view of the evidence supports the agency defense where the defendant did not know the undercover officer, solicited the sale, and exhibited other salesmanlike behavior (see, People v Roche, 45 N.Y.2d 78, 83, 86, cert denied 439 U.S. 958; People v Herring, 83 N.Y.2d 780). Defense counsel filed lengthy omnibus motions seeking additional discovery, a Wade hearing, and a Sandoval hearing and prepared an adequate defense. Defendant's claim that he was denied his right to testify before the Grand Jury, even if true, would not warrant reversal since an attorney's failure to secure his client's right to testify before the Grand Jury does not suffice to demonstrate ineffectiveness (see, People v Bundy, 186 A.D.2d 357, lv denied 81 N.Y.2d 837).
We find defendant's other pro se claims equally meritless.
Concur — Murphy, P.J., Rubin, Ross, Williams and Tom, JJ.