People v. Morgan

136 A.D.2d 749, 524 N.Y.S.2d 85, 1988 N.Y. App. Div. LEXIS 632

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldman, J.), rendered December 9, 1985, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The claim that the prosecutor made unfair comments during summation was not raised at the trial and is therefore unpreserved for appellate review (see, CPL 470.05 [2]; People v Medina, 53 NY2d 951). In any event, the comments made by the prosecutor during summation were a fair response to comments made by the attorneys for the defendant and the codefendant during their summations (see, People v Torres, 121 AD2d 663; People v Gavins, 118 AD2d 582, Iv denied 67 NY2d 1052). The defense attorneys argued in their respective summations that the police, the only prosecution witnesses, were lying to hide the fact that their "buy and bust” operation netted the wrong men. They argued that the defendant and the codefendant were telling the truth. Since the defense characterized the only defense witnesses—the defendant and the codefendant—as the only witnesses worthy of belief, the prosecutor’s summation was a direct fair response to the defense summations (see, People v Arce, 42 NY2d 179).

The defendant’s remaining contention, that the sentence was excessive, has been considered and has been found to be without merit (see, People v Suitte, 90 AD2d 80). Mollen, P. J., Thompson, Lawrence and Eiber, JJ., concur.