Opinion
2002-06556.
Submitted October 31, 2003.
November 24, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered July 2, 2002, convicting him of criminal sale of a controlled substance in the fifth degree, after a nonjury trial, and imposing sentence.
Lynn W.L. Fahey, New York, N.Y. (David Greenberg of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J. Twersky of counsel; Jason Kroll on the brief), for respondent.
Before: SONDRA MILLER, J.P., WILLIAM D. FRIEDMANN, SANDRA L. TOWNES, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the trial court erred in admitting testimony that upon his arrest, the defendant was found to have $80 of "non-buy money" in his possession, is unpreserved for appellate review, as the defendant failed to object to this testimony at trial ( see People v. Miller, 126 A.D.2d 574).
In any event, in a nonjury trial, absent a showing of prejudice, the trial court is presumed, "by virtue of * * * learning and experience, to have considered only the competent evidence adduced in reaching [its] determination" ( People v. Latella, 112 A.D.2d 324). There is nothing in the record to suggest that this presumption is inapplicable here.
Moreover, even if the trial court had improperly considered such evidence, any resulting error was harmless under the circumstances of this case, where, inter alia, the eyewitness police testimony was strong and consistent, and prerecorded "buy" money was recovered from the defendant's person ( see e.g. People v. Arthur, 186 A.D.2d 661). There is no significant probability that but for this error the defendant would have been acquitted ( see People v. Alfonso, 270 A.D.2d 280).
S. MILLER, J.P., FRIEDMANN, TOWNES and MASTRO, JJ., concur.