Majority
p. 25The People of the State of New York, Respondent, v Armando Rodriguez, Appellant. [619 NYS2d 565]
—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
p. 26
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.
Cases cited
- People v. Rodriguez 38 NY2d 95 at 98 p. 26
- People v. Crimmins 36 NY2d 230 p. 26
- People v. Farrar 52 NY2d 302 at 305-306 p. 26