People v. Rodriguez

210 A.D.2d 25, 619 N.Y.S.2d 565, 1994 N.Y. App. Div. LEXIS 11831

Opinion

—Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), rendered January 13, 1993, 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 5 to 10 years, unanimously affirmed.

While the prosecutor improperly made a brief reference before the jury to the fact that defendant had failed to produce a witness who was not under defendant’s control (see, People v Rodriguez, 38 NY2d 95, 98), that statement was made in reliance upon the court’s initial response that it would issue a missing witness charge, although the charge was never given. However, proof of guilt was overwhelming and the error harmless beyond a reasonable doubt (People v Crimmins, 36 NY2d 230).

In view of defendant’s prior criminal record, the sentence imposed, which is only slightly more than the minimum permissible sentence, was not excessive (see, People v Farrar, 52 NY2d 302, 305-306). Concur—Ellerin, J. P., Wallach, Ross and Williams, JJ.