Opinion
1656
September 26, 2002.
Judgment, Supreme Court, New York County (Daniel FitzGerald, J.), rendered March 14, 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 8 to 16 years, unanimously affirmed.
ILISA T. FLEISCHER, for respondent.
NANCY E. LITTLE, for defendant-appellant.
Before: Nardelli, J.P., Saxe, Ellerin, Rubin, Friedman, JJ.
The court properly exercised its discretion when it denied defendant's motion to reopen the suppression hearing since the insignificant discrepancy between the ghost officer's trial testimony and the arresting officer's hearing testimony would not have affected the outcome of the hearing (People v. Hardy, 275 A.D.2d 656, lv denied 96 N.Y.2d 735).
Defendant's claim regarding the court's instruction on "lack of evidence" is unpreserved (People v. Roldos, 161 A.D.2d 610, lv denied 76 N.Y.2d 864), and we decline to review it in the interest of justice. Were we to review this claim, we would find that even if there were any error, it was harmless in view of the overwhelming evidence of defendant's guilt (id.).
We find no basis to disturb the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.