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People v. Thomas

Appellate Division of the Supreme Court of New York, First Department
Jan 9, 1990
157 A.D.2d 481 (N.Y. App. Div. 1990)

Opinion

January 9, 1990

Appeal from the Supreme Court, New York County, George F. Roberts, J.


Prior to the closing arguments, the trial court, with the agreement of counsel, dismissed the second count of the indictment for criminal possession of a controlled substance in the third degree to avoid possible repugnant verdicts.

On appeal, the defendant argues that while the dismissal was not error, the court committed error by not striking or instructing the jury to disregard the evidence, with respect to the dismissed count, that his codefendant possessed three additional vials of crack upon her arrest. This contention is meritless.

Since the issue was never raised in the trial court, it has not been preserved as a matter of law for review by this court. (CPL 470.05; People v. Karabinas, 63 N.Y.2d 871.) In any event, on the merits, the court was clear when it told the jury that the issue in the case is whether the People have established "that the defendant acted in concert with Joan McFadden in selling cocaine to Detective Gerard DiMuro."

Nor does it appear that the prosecutor's summation contained any prejudicial comments. The Trial Assistant's argument to the jury to accept the prosecution's witnesses' statements over those of the defendant was well within the boundaries of proper adversarial comment. (People v. Bailey, 58 N.Y.2d 272.) The defendant's attack on the prosecution's characterization of the defendant as a liar is factually unsupportable. The prosecutor merely commented that the undercover officer involved in this case was a credible witness because he had much less of an interest in the outcome of these proceedings than did the defendant, who testified on his own behalf.

We have examined the remainder of the defendant's contentions and find them to be unpersuasive.

Concur — Kupferman, J.P., Asch, Ellerin and Smith, JJ.


Summaries of

People v. Thomas

Appellate Division of the Supreme Court of New York, First Department
Jan 9, 1990
157 A.D.2d 481 (N.Y. App. Div. 1990)
Case details for

People v. Thomas

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LARRY THOMAS, Appellant

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 9, 1990

Citations

157 A.D.2d 481 (N.Y. App. Div. 1990)
549 N.Y.S.2d 404