People v. Hendricks

298 A.D.2d 852, 747 N.Y.S.2d 820, 2002 N.Y. App. Div. LEXIS 8971

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 1, 2002
• Status: Published

Opinion

Appeal from a judgment of Oneida County Court (Fahey, J.), entered May 1, 1998, convicting defendant after a jury trial of, inter alia, criminal sale of a controlled substance in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him following a jury trial of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) and criminal possession of a controlled substance in the third degree (§ 220.16 [1]). We reject the contention of defendant that he was denied a fair trial by prosecutorial misconduct. Although during his opening statement the prosecutor improperly stated that the police had determined from prior investigations that defendant may have been selling cocaine, County Court sustained defendant’s objection thereto, instructed the jury to disregard the remark, and reminded the jury that opening statements do not constitute evidence. Thus, the court obviated any prejudice arising from the prosecutor’s improper remark (see People v Galloway, 54 NY2d 396, 399; see also People v Chase, 265 AD2d 844, 845-846, lv denied 94 NY2d 902).

Defendant failed to preserve for our review his further contention that the prosecutor engaged in misconduct during summation (see People v Kaufman, 288 AD2d 895, 896, lv denied 97 NY2d 684).

The sentence is neither unduly harsh nor severe. We have reviewed defendant’s remaining contentions and conclude that they are without merit. Present — Green, J.P., Wisner, Scudder, Burns and Gorski, JJ.