People v. Capriles

198 A.D.2d 57, 604 N.Y.S.2d 728, 1993 N.Y. App. Div. LEXIS 10454

Opinion

—Judgment, Supreme Court, New York County (Patricia Williams, J.), rendered March 12, 1991, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and criminal possession of a controlled substance in the third degree and sentencing him as a second felony offender to concurrent terms of 4 Vi to 9 years, unanimously affirmed.

Defendant’s argument that a comment made by the trial court in the course of the charge misled the jury into believing that defendant’s mere presence at the scene of a drug sale was sufficient for a finding that he acted in concert with the seller, thereby depriving him of a fair trial, is unpreserved for appellate review as a matter of law, defendant having failed to object to this portion of the charge (CPL 470.05), and we decline to review the issue in the interest of justice. If we were to review, we would find, first, that the charge, viewed in its entirety (see, People v Coleman, 70 NY2d 817), was not misleading in the manner asserted, and, second, that even if it were, the error was harmless in view of the overwhelming evidence of defendant’s guilt. Concur — Rosenberger, J. P., Wallach, Kupferman, Asch and Kassal, JJ.