People v. Torres — 220 A.D.2d 269

Majority

p. 269

The People of the State of New York, Respondent, v Hector Torres, Appellant.

[632 NYS2d 115]

—Judgment, Supreme Court, New York County (Leslie Crocker Synder, J.), rendered March 5, 1993, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree, and sentencing him, as a second felony offender, to concurrent terms of 7 to 14 years, unanimously affirmed.

There is no merit to defendant’s claim in this "buy-and-bust” case that the prosecutor mischaracterized the defense theory and denigrated defense counsel during summation by arguing that the police witnesses had no reason to perjure themselves and that defense counsel’s argument that defendant was framed was "desperate”. These comments were fair response to defense counsel’s summation, which argued not only that defendant had been misidentified but that the police, instead

p. 270

of releasing defendant after realizing they had arrested the wrong man, persisted in the arrest in an effort to cover up their mistake (People v Marks, 6 NY2d 67 , 77-78, cert denied 362 US 912 ). Defendant’s related claim that the prosecutor improperly accused defense counsel of attempting to confuse the jury was also properly responsive to defense counsel’s summation, and in any event did not exceed the broad bounds of rhetorical comment permissible in summation (People v Galloway, 54 NY2d 396 , 399). Defendant’s other claim is unpreserved and we decline to review it. Concur—Murphy, P. J., Rubin, Kupferman and Williams, JJ.

Cases cited

People v. Marks 6 NY2d 67 N.Y. 1959-05-21 at 77-78 p. 270
People v. Galloway 54 NY2d 396 N.Y. 1981-11-24 at 399 p. 270