Opinion
May 14, 1992
Appeal from the Supreme Court, Bronx County (George D. Covington, J.).
Assuming arguendo that the testifying undercover police officer's brief reference to defendant's possession of "non buy" money was improper, we would find it to be harmless error in light of the overwhelming evidence of defendant's guilt (People v. Cruz, 158 A.D.2d 706, 707, lv denied 76 N.Y.2d 786). Defendant was positively identified by the undercover officer. (People v Stasio, 166 A.D.2d 160, lv denied 76 N.Y.2d 1024.) Further, the elicited statement that defendant was not in possession of pre-recorded "buy money" when arrested was emphasized in defense counsel's summation to the jury to support the contention of reasonable doubt. Even had defense counsel not chosen to utilize the statement to defendant's advantage, we would conclude that it was not so prejudicial as to have deprived defendant of a fair trial such as to warrant a mistrial in view of the overwhelming evidence of guilt (CPL 280.10; see, People v. Ortiz, 54 N.Y.2d 288, 292). Further, counsel did not seek a curative instruction (People v. Lewis, 161 A.D.2d 286, 287, lv denied 76 N.Y.2d 791). Nor do we find any abuse of discretion in the sentence imposed upon defendant.
Concur — Ellerin, J.P., Kupferman, Asch and Kassal, JJ.