Opinion
September 22, 1992
Appeal from the Supreme Court, Bronx County (Lawrence H. Bernstein, J.).
Viewing the evidence in the light most favorable to the People, the evidence was legally sufficient to establish that defendant possessed the drugs found in the apartment with intent to sell (People v Morales, 162 A.D.2d 128). People v Rivera ( 176 A.D.2d 498, lv denied 79 N.Y.2d 831) is distinguishable, in that here defendant led the undercover officer to the apartment to which he had apparently unlimited access and retrieved the drugs he sold. Nor is this defendant's conviction of criminal sale of a controlled substance unsupported by legally sufficient evidence or against the weight of the evidence. The People's identification evidence was quite strong, and defendant's criminal liability is not negated by the fact that neither the prerecorded buy money nor any additional drugs were found on defendant when arrested (People v Bobbitt, 180 A.D.2d 489, lv denied 79 N.Y.2d 1046). Defendant's argument that the prosecutor's summation deprived him of a fair trial is unpreserved and we decline to review it (CPL 470.05). Were we to review in the interest of justice, we would find that the challenged comments do not warrant a new trial in view of the overwhelming evidence of guilt, the curative instruction of the trial court, and a defense summation suggesting that the police officers were not telling the truth.
Concur — Sullivan, J.P., Carro, Milonas, Wallach and Kupferman, JJ.