People v. Johnson

207 A.D.2d 743, 618 N.Y.S.2d 629, 1994 N.Y. App. Div. LEXIS 9214

Opinion

—Judgment, Supreme Court, Bronx County (Bonnie Wittner, J.), rendered July 14, 1992, 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 4 Vi to 9 years, unanimously affirmed.

Any prejudice to defendant in this "buy-and-bust” prosecution that might have arisen from the prosecutor’s summation comments that defendant had entered a grocery store to dispose of the "incriminating evidence” of his drug sale because he was "practiced at his trade” and that defendant had put forward in his own summation a "conspiracy of the highest degree” theory requiring the jury, in order to acquit, to believe that police officers had committed perjury, was alleviated by the court’s prompt sustaining of defendant’s objections and giving of curative instructions, to which defendant did not object (People v Santiago, 52 NY2d 865).

Defendant’s claim that he was denied his constitutional right to a jury of his own choosing and his statutory right to exercise peremptory challenges was waived when he withdrew his peremptory challenge. Concur—Murphy, P. J., Rosenberger, Wallach, Ross and Rubin, JJ.