Opinion
August 12, 1985
Appeal from the County Court, Orange County (Ritter, J.).
Judgment affirmed.
Although our review of the record indicates that the prosecutor improperly elicited testimony concerning defendant's alleged possession of a controlled substance which was not charged in the indictment, we note that defendant's opening referred to the defense of entrapment. Additionally we find that there was no significant probability that the jury would have acquitted defendant had the error not occurred ( cf. People v. Calvano, 30 N.Y.2d 199; People v. Mann, 31 N.Y.2d 253; People v. Ventimiglia, 52 N.Y.2d 350). The inherently consistent and unimpeached testimony of the People's witnesses over-whelmingly established defendant's knowing possession and sale of heroin. Defendant did not elicit one iota of evidence which would negate the People's proof. Accordingly, we hold that the error was harmless and reversal is not warranted on that ground.
We have reviewed defendant's remaining contentions and find them to be without merit. Mollen, P.J., Gibbons, Rubin and Kooper, JJ., concur.