People v. Garcia

180 A.D.2d 432, 579 N.Y.S.2d 373, 1992 N.Y. App. Div. LEXIS 1181

Opinion

Judgment, Supreme Court, Bronx County (Irene J. Duffy, J.), rendered October 9, 1990, convicting defendant, after a jury trial, of criminal sale and possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent prison terms of from 5 to 10 years, unanimously affirmed.

Defendant’s argument that the prosecutor’s reference during summation to defendant’s "undisclosed misdemeanor” undermined the court’s Sandoval ruling is unpreserved and we decline to reach it (People v Williams, 178 AD2d 145). If we were to consider this argument in the interest of justice, we would find it to be without merit. Defendant’s other arguments regarding the prosecutor’s alleged misconduct are also unpreserved (CPL 470.05 [2]). In any event, were we to consider them in the interest of justice, we would find that the prosecutor’s single objection to defense counsel’s comments regarding the prosecutor’s failure to call a police officer witness was not like the frequent interruption of counsel’s closing argument we found objectionable in People v Marcelin (23 AD2d 368, 370). We would also find that defendant was not deprived of a fair trial by the prosecutor’s motion made in open court to reopen his case to call rebuttal witnesses even though the court had previously denied this motion, since the court immediately denied the motion while making it clear to the jury that it was not to speculate regarding the testimony of uncalled witnesses. Concur—Murphy, P. J., Sullivan, Ellerin, Kupferman and Kassal, JJ.