PEOPLE v. PACHECO

ORDERED that the appeal from the purported judgment is dismissed; and it is further,

ORDERED that the judgment is affirmed.

The appeal from the purported judgment must be dismissed, as the purported judgment is nothing more than a proceeding to cause the judgment rendered on November 12, 1998, to be brought to execution (see, People v. Sanchez, ___ A.D.2d ___; [2d Dept., Dec. 4, 2000]; People v. DeVillar, 264 A.D.2d 528).

Contrary to the defendant's contention, the trial court providently exercised its discretion in refusing to provide him with an advance ruling as to whether his testimony would "open the door" and permit the People to question him about a pending drug charge (see, People v. Ardito, 231 A.D.2d 116; see also, People v. Betts, 70 N.Y.2d 289, 295).

The trial court properly amended counts 12 and 13 of the indictment pursuant to CPL 200.70(1) at the close of the People's case to reflect the Grand Jury's intention to indict the defendant for possession of heroin instead of cocaine. The amendment did not change the theory of the prosecution, and the defendant was not prejudiced in any way by the amendment (see, People v. DeSanto, 217 A.D.2d 636; People v. Acevedo, 215 A.D.2d 115; People v. Heaton, 59 A.D.2d 704).

The defendant's remaining contentions are without merit.