People v. Ayala

191 A.D.2d 381, 595 N.Y.S.2d 445, 1993 N.Y. App. Div. LEXIS 3211

Opinion

—Judgment, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), rendered August 30, 1990, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him to a term of 2Vi to IV2 years, unanimously affirmed.

With regard to the prosecutor’s comments in summation concerning a handwritten police report, as to which the trial court gave an adverse inference charge, and the failure of a witness to come forward, the court averted any prejudice to defendant by sustaining his objections and instructing the jury to disregard the comments. The prosecutor’s comment that the case was a "simple” one, and his response to the suggestion made in defendant’s summation that the police officers might have "framed” defendant, did not exceed the broad bounds of rhetorical comment permissible in closing argument (see, People v Galloway, 54 NY2d 396, 399).

Although the court did not charge the jury on the limited use of evidence of uncharged drug sales that occurred prior to defendant’s arrest (see, People v Alvino, 71 NY2d 233), no request to so charge was made, nor was any objection made to the charge as given. The issue is therefore unpreserved, and we decline to review it in the interest of justice. Concur— Murphy, P. J., Milonas, Ross and Asch, JJ.