People v. Torres

Judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered on December 6, 1988, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him as a predicate felon to an indeterminate prison term of from six to twelve years, unanimously affirmed.

The fifty-year-old defendant was arrested pursuant to a buy- and-bust operation. The arresting officer removed a ten dollar bill of pre-recorded buy money from the defendant’s mouth.

Defendant’s absence from the pre-charge and post-charge conferences, without objection, was not error as it did not deprive defendant of his constitutional and statutory right to be present at all material stages of a criminal proceeding (People v Ciaccio, 47 NY2d 431 ; People v Romero, 168 AD2d 316 ). Such conferences are not a material stage of the proceedings.

Although defendant argues that the cumulative effect of the prosecutor’s allegedly improper summation comments deprived him of a fair trial, he failed to object to any of these comments at trial, and we decline to review in the interest of justice (People v Devonish, 159 AD2d 320 , 321, Iv denied 76 NY2d 733 ), in view of the overwhelming proof of guilt. However, we would note our disapproval of the prosecutor’s comments including those analogizing defense counsel to a magician performing magic tricks (People v Lombardi, 20 NY2d 266 , 272).

We decline to reduce defendant’s sentence in the interests of justice in light of his extensive criminal record, merely because he is a drug addict. Concur — Murphy, P. J., Milonas, Ross and Asch, JJ.