People v. Tafur

Jun 10, 1991
Versions:174 A.D.2d 642

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Friedmann, J.), rendered June 2, 1988,- convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish beyond a reasonable doubt that the defendant knowingly and unlawfully sold a narcotic drug to an undercover officer (see, Penal Law § 220.39 [1]). Resolution of issues of credibility, as well as the weight to be accorded the evidence presented, are primarily questions to be *643determined by the jury, which saw and heard the witnesses (see, People v Gaimari, 176 NY 84, 94). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v Garafolo, 44 AD2d 86, 88; see also, People v Davis, 171 AD2d 672). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).

Contrary to the defendant’s contention that the prosecutor vouched for the credibility of the witnesses and referred to facts not in evidence, these comments were either a fair response to defense counsel’s summation (see, People v Rodriguez, 159 AD2d 356, 357; People v Rodriguez, 140 AD2d 723, 724; People v Switzer, 115 AD2d 673, 673-674; People v Gilmore, 106 AD2d 399, 401) or concerned permissible inferences to be drawn from the evidence. Additionally, while the prosecutor’s comments regarding the unrefuted testimony of the People’s witnesses may have drawn attention to defendant’s failure to testify, the court promptly delivered curative instructions and rendered harmless any possible impropriety (see, People v Lynch, 145 AD2d 440; People v Allen, 135 AD2d 823; see also, People v Crimmins, 36 NY2d 230).

The defendant’s remaining contention is unpreserved for appellate review (see, People v Dixon, 165 AD2d 832), and we decline to review it in the exercise of our interest of justice jurisdiction. Rosenblatt, J. P., Miller, O’Brien and Ritter, JJ., concur.