Opinion
1729
October 3, 2002.
Judgment, Supreme Court, New York County (Arlene Silverman, J.), rendered October 30, 2000, 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.
WALTER J. STOREY, for respondent.
ADA D. MEDINA, for defendant-appellant.
Before: Williams, P.J., Tom, Mazzarelli, Sullivan, Gonzalez, JJ.
The challenged portions of the prosecutor's summation were generally fair comment on the evidence as well as the reasonable inferences to be drawn therefrom, and were proper responses to the defense summation (see People v. Overlee, 236 A.D.2d 133, lv denied 91 N.Y.2d 976; People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884). Since, in addition to claiming misidentification, defendant repeatedly attacked the officers' credibility, it was entirely proper for the People to make record-based arguments, addressed to the jury's common sense, concerning motives or lack of motives to falsify (see People v. Bryant, 294 A.D.2d 221). Contrary to defendant's assertions, the prosecutor made appropriate arguments concerning the credibility of defendant's testimony, and did not shift the burden of proof, denigrate defense counsel, or make an impermissible "safe streets" argument. In any event, were we to find any error, we would find it to be harmless in light of the overwhelming evidence of defendant's guilt.
The various testimony about radio communications challenged by defendant on appeal was properly admitted. This testimony completed the narrative and provided relevant background information explaining the events leading to defendant's arrest (People v. Sarmiento, 168 A.D.2d 328,affd 77 N.Y.2d 976). Moreover, the People were entitled to establish that the undercover officer accurately described defendant's appearance (see People v. Huertas, 75 N.Y.2d 487), and the court's identification charge gave the jury suitable guidance on the evaluation of this evidence.
We perceive no basis for a reduction of sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.