People v. Sanabria

216 A.D.2d 29, 628 N.Y.S.2d 627, 1995 N.Y. App. Div. LEXIS 6068

Opinion

Judgment, Supreme Court, New York County (Charles Tejada, J.), rendered February 22, 1993, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third and fourth degrees and sentencing him, as a second felony offender, to concurrent terms of 4^2 to 9 years, and 3 to 6 years, respectively, unanimously affirmed.

The radio broadcast by a fellow officer detailing defendant’s unlawful conduct, description and location gave the arresting officers probable cause (see, People v Lypka, 36 NY2d 210, 213-214). The People also established that defendant abandoned the bag containing 70 glassines of heroin when he tossed it to the ground after seeing the police officers exiting their van with shields displayed as they walked toward him (see, People v Boodle, 47 NY2d 398, cert denied 444 US 969). Defendant’s claims that the prosecutor attempted to shift the burden of proof during her summation are unpreserved for appellate review as a matter of law (CPL 470.05 [2]), and we decline to review in the interest of justice in the light of the underlying evidence of defendant’s guilt. To the extent otherwise challenged, the summation constituted permissible rhetorical comment (People v Galloway, 54 NY2d 396), and fair response to defendant’s attack on the credibility of the People’s witnesses (People v Marks, 6 NY2d 67, cert denied 362 US 912). Concur— Sullivan, J. P., Rubin, Ross, Nardelli and Mazzarelli, JJ.