Opinion
May 10, 2001.
Judgment, Supreme Court, Bronx County (Patricia Williams, J.), rendered July 31, 1997, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds, criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 41/2 to 9 years, unanimously affirmed.
Lara R. Binimow, for respondent.
John Schoeffel, for defendant-appellant.
Before: Sullivan, P.J., Rosenberger, Tom, Andrias, Marlow, JJ.
Defendant's challenge to the court's omission from its final charge of an instruction regarding the weight to be accorded a police officer's testimony is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find no basis for reversal, particularly since the court had provided an appropriate instruction on the issue in its opening remarks.
Defendant has also failed to preserve for appellate review his contentions with respect to the prosecutor's summation and we decline to review them in the interest of justice. Were we to review these claims, we would find that while the prosecutor's comment comparing defense counsel to a magician performing tricks was improper, it would not warrant reversal in the context of the defense and prosecution summations as a whole and the overwhelming evidence of defendant's guilt (see,People v. Shears, 184 A.D.2d 357, lv denied 80 N.Y.2d 909). The other challenged remarks were fair comments on the evidence that were responsive to credibility arguments raised by the defense (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).
Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.