People v. Moses

Judgment, Supreme Court, New York County (Alvin Schlesinger, J.), rendered March 1, 1990, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him as a predicate felony offender to a term of imprisonment of from AVi to 9 years, unanimously affirmed.

Defendant and a cohort were arrested for selling two vials of crack to an undercover police officer. At trial, defendant testified that the undercover approached him on the street and asked if he had any drugs. According to defendant, he told her that he did not sell drugs, but directed her to a group of people on the corner who he believed did.

Defendant argues that he was deprived of a fair trial by improper questions put to him on cross examination and prejudicial comments in the prosecutor’s summation. For the most part, these questions and comments were not objected to at trial, and thus, whether they deprived defendant of a fair trial is an issue not preserved for appellate review (CPL 470.05 [2]; People v Montrose, 155 AD2d 376, lv denied 75 NY2d 870). Were we to consider the issue in the interest of justice, we would find it to be without merit. The prosecutor was entitled to inquire into the basis for defendant’s belief that the people on the corner were selling drugs. While certain questions on the issue of defendant’s credibility were improper, the trial court promptly instructed defendant not to answer them, and no further relief was sought, and, indeed, none was necessary. The prosecutor’s summation did not mischaracterize defendant’s testimony or imply that he was engaged in an ongoing drug enterprise. And, while it was improper for the prosecutor to argue that defendant tailored his testimony to the People’s evidence, the one comment made was not objected to, and alone does not constitute reversible error (People v Morgan, 165 AD2d 777, lv denied 77 NY2d 909; People v Daniels, 156 AD2d 297, lv denied 75 NY2d 918). Concur—Murphy, P. J., Carro, Ellerin, Kassal and Smith, JJ.