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People v. Davis

223 A.D.2d 652 Court N.Y. App. Div. Decision date 1996-01-22 English

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p. 652
The People of the State of New York, Respondent, v Barry Davis, Appellant.
[637 NYS2d 21]

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered December 8, 1992, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

On appeal, the defendant contends that the prosecutor impermissibly elicited testimony concerning his . post-arrest

p. 653
silence. This contention is unpreserved for appellate review (see, CPL 470.05 [2]; People v Loaiza, 201 AD2d 587 ). In any event, any error in this regard was, under the circumstances, harmless beyond a reasonable doubt (see, People v Loaiza, supra).

The defendant’s challenge to the prosecutor’s remarks on summation is similarly unpreserved for appellate review (see, CPL 470.05 [2]; People v Sanchez, 197 AD2d 548 ). In any event, the prosecutor’s comments constituted a fair response to defense counsel’s challenge to the credibility of the People’s witnesses (see, People v Long, 205 AD2d 804 ; People v Russo, 201 AD2d 512 , affd 85 NY2d 872 ).

We have examined the defendant’s remaining contentions and find them to be without merit (see, CPL 470.15 [5]; People v Suitte, 90 AD2d 80 ). Mangano, P. J., Miller, Ritter and Pizzuto, JJ., concur.

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