People v. Davis

270 A.D.2d 118, 704 N.Y.S.2d 474, 2000 N.Y. App. Div. LEXIS 2862

Opinion

—Judgment, Supreme Court, New York County (William Wetzel, J.), rendered August 21, 1998, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4V2 to 9 years, unanimously affirmed.

Upon our reading of the record as a whole, we conclude that the court made a collective ruling that all statements made during the drug transaction by any of the alleged participants constituted res gestae, and we find that each of the two statements challenged on appeal were admissible on that theory (see, People v Davis, 58 NY2d 1102; see also, People v Salko, 47 NY2d 230, 239-240). In any event, were we to find either or both of these statements to be inadmissible, we would find the error to be harmless (see, People v Maher, 89 NY2d 456, 462-463). To the extent that defendant is raising a constitutional claim, such claim is unpreserved and we decline to review it in the interest of justice. Concur — Williams, J. P., Ellerin, Rubin and Saxe, JJ.