People v. Smith

Jan 31, 1992
Versions:179 A.D.2d 1022
580 N.Y.S.2d 119
1992 N.Y. App. Div. LEXIS 2359

We reject defendant’s contention that the verdict was not supported by sufficient evidence, and we further conclude, based upon our review of the record, that the verdict was not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490). The testimony of the chemist, who performed the standard tests upon the substance defendant sold to a police informant, was sufficient to support the determination that the substance was cocaine (see, People v Hushie, 145 AD2d 506, 507, lv denied 73 NY2d 922).

Defendant failed to preserve for review his objections to the prosecutor’s summation. In any event, we conclude that the prosecutor’s comments of which defendant now complains were fair comment upon the evidence. Even if we were to conclude that the prosecutor’s remarks were improper, given the overwhelming evidence of defendant’s guilt, reversal in *1023the interest of justice is not required (see, People v Scott, 138 AD2d 421, lv denied 72 NY2d 866).

We decline to modify defendant’s sentence in the interest of justice. Defendant, who has a lengthy criminal record, was convicted of selling quantities of cocaine to a police informant on five separate occasions. He was sentenced as a predicate felon to an aggregate sentence of 20 years to life, which we do not find to be excessive under those circumstances.

Finally, we conclude that defendant was not denied the effective assistance of counsel. (Appeal from Judgment of Onondaga County Court, Mulroy, J. — Criminal Sale Controlled Substance, 2nd Degree.) Present — Doerr, J. P., Boomer, Green, Pine and Balio, JJ.