People v. McDaniel

255 A.D.2d 604, 682 N.Y.S.2d 607

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1998
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Kuffner, J.), rendered February 21, 1995, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled. substance in the seventh degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant has not preserved for appellate review his claim that the prosecutor referred to matters not in evidence. Although counsel for the codefendant moved for a mistrial on this issue, counsel for the defendant did not (see, CPL 470.05 [2]; People v Witherspoon, 157 AD2d 811).

In any event, we find no merit to this claim or to the defendant’s remaining claim of prosecutorial misconduct. The prosecutor’s remarks during summation were either fair comment regarding matters within the “four corners of the evidence” (People v Ashwal, 39 NY2d 105), fair response to the defense counsel’s summation (see, People v Galloway, 54 NY2d 396), or constituted harmless error in light of the overwhelming evidence of the defendant’s guilt (see, People v Crimmins, 36 NY2d 230).

The defendant’s remaining contentions are without merit. Rosenblatt, J. P., Santucci, Altman and Friedmann, JJ., concur.