Opinion
November 19, 1991
Appeal from the Supreme Court, New York County (Frederic Berman, J.).
During mid-afternoon on June 6, 1988, defendant, who was attired in a green tank top and yellow shorts, and was wearing a cast on his right leg below the knee, sold one half gram of cocaine to an undercover officer for $30 in pre-recorded buy money. Defendant consummated the sale with assistance of accomplice George Ramos, who, at the time of his arrest, was found to be in possession of the pre-recorded buy money. The identity of both men was confirmed by the purchasing undercover officer shortly after the drug sale. At trial, the defense was mistaken identity, with defendant using the testimony of his wife in an effort to establish he left his house that day with crutches, while police testimony failed to indicate whether or not the seller of the cocaine used crutches.
Defendant's claim that the prosecutor improperly commented on summation that defendant was in the drug dealing "business", and improperly likened his activity to that of a "sales person" in a store, is unpreserved, and we decline to consider it. We note, however, that in view of the overwhelming evidence of guilt, the error, if any, is harmless.
Defendant's remaining contentions are either unpreserved for review or without merit. Were we to consider the unpreserved contentions in the interest of justice, we would find them, too, to be without merit.
Concur — Sullivan, J.P., Carro, Rosenberger, Kupferman and Rubin, JJ.