People v. Rodriguez

—Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), rendered January 13, 1993, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.

While the prosecutor improperly made a brief reference before the jury to the fact that defendant had failed to produce a witness who was not under defendant’s control (see, People v Rodriguez, 38 NY2d 95, 98), that statement was made in reliance upon the court’s initial response that it would issue a missing witness charge, although the charge was never given. However, proof of guilt was overwhelming and the error harmless beyond a reasonable doubt (People v Crimmins, 36 NY2d 230).

In view of defendant’s prior criminal record, the sentence imposed, which is only slightly more than the minimum permissible sentence, was not excessive (see, People v Farrar, 52 NY2d 302, 305-306). Concur—Ellerin, J. P., Wallach, Ross and Williams, JJ.