People v. Sostre

168 A.D.2d 286, 562 N.Y.S.2d 511, 1990 N.Y. App. Div. LEXIS 15107

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 1990
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Martin Rettinger, J., at jury trial and sentence), rendered January 10, 1989, convicting defendant of criminal sale of a controlled substance in the third degree and sentencing defendant, as a second felony offender, to an indeterminate term of imprisonment of from 4ló to 9 years, unanimously affirmed.

The statements made by the prosecutor regarding the credibility of the undercover police officer did not constitute improper vouching and were, in any event, an appropriate response to comments made on summation by the defense, wherein the defense went so far as to suggest that the testimony of the undercover officer was "incredible” (see, People v Moore, 157 AD2d 538, lv denied 75 NY2d 968). Defendant’s objections to the introduction of, and comments upon, the witness’s out-of-court identification of defendant were not properly preserved for appellate review, nor were defendant’s remaining arguments respecting the prosecutor’s characterization of certain issues raised by the defense as "smoke screens”. Were we to reach these issues in the interest of justice, we would find that these comments did not exceed the broad bounds of rhetorical comment permissible during closing argument (People v Galloway, 54 NY2d 396) and that the testimony regarding the witness’s out-of-court identification was properly admitted pursuant to CPL 60.25. Concur—Murphy, P. J., Sullivan, Carro, Milonas and Rubin, JJ.