Summary
concluding that an offer to sell cocaine, followed by an undercover officer “asking for ‘two’ ” and the defendant reaching for a cigarette box containing the cocaine, was sufficient
Summary of this case from Gonzalez v. City of N.Y.Opinion
June 25, 1992
Appeal from the Supreme Court, New York County (Joan Carey, J.).
The People met their burden of proving beyond a reasonable doubt that defendant had offered to sell cocaine to undercover police officers. When the co-defendant asked the undercover if he wanted to buy some "coke", the officer responded by asking for "two" and then defendant reached for a cigarette box containing the cocaine, which was recovered from defendant's right hand. Defendant, on the other hand, testified that he was attacked by police officers for no apparent reason and that while he had a box of cigarettes at the time, he did not know where the "other" box containing the drugs had come from. The jury was in the best position to determine the credibility of the witnesses, and was entitled to credit the officers' testimony and to reject that of defendant (see, People v. Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932).
Defendant's objection to the prosecutor's summation remarks is not preserved for appellate review. In any event, the People's remarks were, in the circumstances, a fair response to the defense summation, which clearly questioned the veracity of the police officers' testimony (see, People v. Sims, 162 A.D.2d 384, 385, lv denied 76 N.Y.2d 990).
Concur — Sullivan, J.P., Wallach, Asch, Kassal and Rubin, JJ.