People v. Torres

171 A.D.2d 425, 567 N.Y.S.2d 5, 1991 N.Y. App. Div. LEXIS 2630

Opinion

Judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered on December 6, 1988, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him as a predicate felon to an indeterminate prison term of from six to twelve years, unanimously affirmed.

The fifty-year-old defendant was arrested pursuant to a buy- and-bust operation. The arresting officer removed a ten dollar bill of pre-recorded buy money from the defendant’s mouth.

Defendant’s absence from the pre-charge and post-charge conferences, without objection, was not error as it did not deprive defendant of his constitutional and statutory right to be present at all material stages of a criminal proceeding (People v Ciaccio, 47 NY2d 431; People v Romero, 168 AD2d 316). Such conferences are not a material stage of the proceedings.

Although defendant argues that the cumulative effect of the prosecutor’s allegedly improper summation comments deprived him of a fair trial, he failed to object to any of these comments at trial, and we decline to review in the interest of justice (People v Devonish, 159 AD2d 320, 321, Iv denied 76 NY2d 733), in view of the overwhelming proof of guilt. However, we would note our disapproval of the prosecutor’s comments including those analogizing defense counsel to a magician performing magic tricks (People v Lombardi, 20 NY2d 266, 272).

We decline to reduce defendant’s sentence in the interests of justice in light of his extensive criminal record, merely because he is a drug addict. Concur — Murphy, P. J., Milonas, Ross and Asch, JJ.