Opinion
1747
October 3, 2002.
Judgment, Supreme Court, New York County (Charles Solomon, J. at suppression hearing; John Cataldo, J., at jury trial and sentence), rendered June 21, 2000, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 4 1/2 to 9 years, unanimously affirmed.
ALAN GADLIN, for respondent.
CLAUDIA S. TRUPP, for defendant-appellant.
Before: Nardelli, J.P., Saxe, Rosenberger, Friedman, Marlow, JJ.
Defendant's suppression motion was properly denied. The police had probable cause to believe that defendant, who stood in the vicinity in a position to observe the drug transaction and, immediately after it was concluded, received currency from the person who had actually exchanged drugs for money with the undercover officer, was a participant in the sale (see People v. Torres, 238 A.D.2d 244, lv denied 90 N.Y.2d 898). Probable cause does not require proof beyond a reasonable doubt (Brinegar v. United States, 338 U.S. 160, 175; People v. Bigelow, 66 N.Y.2d 417, 423).
The challenged portions of the prosecutor's summation were within the range of fair comment on the evidence in response to the arguments set forth by defense counsel (see People v. Overlee, 236 A.D.2d 133, lv denied 91 N.Y.2d 976; People v. D'Alessandro, 184 A.D.2d 114, 118-119,lv denied 81 N.Y.2d 884). Defendant's claim concerning an objection made by the prosecutor during the defense summation is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the comment made by the prosecutor in the course of objecting did not deprive defendant of a fair trial.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.