Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Acosta, Renwick, Richter, Gische, JJ.
Judgment, Supreme Court, New York County (Daniel P. Conviser, J.), rendered April 13, 2010, convicting defendant, after a jury trial, of driving while intoxicated and driving while ability impaired, and sentencing him to an aggregate term of 60 days and 5 years' probation, unanimously affirmed.
The court properly exercised its discretion in determining that defendant's cross-examination opened the door (see generally People v Massie, 2 NY3d 179, 183-185 ) to limited testimony that defendant declined to make a statement to the arresting officer. Defendant pursued a line of questioning that created misleading impressions about his post arrest interactions with the police (see United States v Fairchild, 505 F2d 1378, 1383 [5th Cir 1975]; see also People v Davis, 61 NY2d 202, 205-207 ). Furthermore, any potential prejudice was prevented by the court's thorough instruction, which defense counsel drafted, and which the jury is presumed to have followed (see People v Davis, 58 NY2d 1102, 1104 ). In any event, any error in receiving the challenged testimony was harmless (see People v Crimmins, 36 NY2d 230 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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