Opinion
February 25, 1993
Appeal from the Supreme Court, New York County (Carol Berkman, J.).
The evidence was not insufficient (People v Contes, 60 N.Y.2d 620, 621), and the verdict was not against the weight of the evidence (People v Bleakley, 69 N.Y.2d 490, 495). The credibility of the testimony of the undercover officer and the accuracy of his identification of defendant were for the jury to resolve (People v Jenkins, 164 A.D.2d 770, 770-771, lv denied 76 N.Y.2d 894). The officer's one minute encounter with defendant provided an adequate opportunity to observe defendant's appearance (cf., People v Mosley, 112 A.D.2d 812, affd 67 N.Y.2d 985), and his reliability was assured by the drive-by identification minutes later (see, People v Roberts, 79 N.Y.2d 964, 966). The failure to recover the prerecorded buy money is not dispositive (People v Bobbitt, 180 A.D.2d 489, lv denied 79 N.Y.2d 1046). The issues raised concerning the prosecutor's summation are not preserved (People v Wright, 172 A.D.2d 293, 294, lv denied 77 N.Y.2d 1003), and in any event, the remarks were an appropriate response to the defense attack on the credibility of the police witnesses (see, People v Rodriguez, 159 A.D.2d 356, 357, lv denied 76 N.Y.2d 795) and fair comment on the evidence. Defendant's challenge to his sentence is not preserved (People v Ingram, 67 N.Y.2d 897, 899; People v Harris, 110 A.D.2d 660), and in any event, his constitutional arguments have been repeatedly rejected (see, e.g., People v Vasquez, 104 A.D.2d 1012; People v DiMarco, 149 A.D.2d 612; People v Pacheco, 73 A.D.2d 370, affd on other grounds 53 N.Y.2d 663), and recent constitutional jurisprudence does not suggest that departure from these holdings is warranted (see, e.g., Parke v Raley, ___ US ___, 121 L Ed 2d 391, 402; Harmelin v Michigan, 501 US ___, ___, 111 S Ct 2680, 2701-2702).
Concur — Milonas, J.P., Rosenberger, Kupferman, Asch and Kassal, JJ.