People v. Garcia

• Decision Date: 12 December 1995
• Citation: 635 N.Y.S.2d 21,222 A.D.2d 274
• Parties: The PEOPLE of the State of New York, Respondent, v. Juan GARCIA, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 21

635 N.Y.S.2d 21

222 A.D.2d 274

The PEOPLE of the State of New York, Respondent, v. Juan GARCIA, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Dec. 12, 1995.

P. Rosenberg, for respondent.

R. Brown, for defendant-appellant.

Before ELLERIN, J.P., and RUBIN, NARDELLI, WILLIAMS and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Martin Rettinger, J.), rendered November 10, 1992, 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 4 1/2 to 9 years, unanimously affirmed.

The prosecutor's summation comment that "the defendant has to explain why he doesn't have a receipt" from the parking lot where he parked his car was a proper reference to defendant's testimony purporting to explain his presence at the sale location. Defendant's remaining challenges to the prosecutor's summation are unpreserved as a matter of law, either because he did not object at all, or made only a general objection insufficient to alert the trial court to his appellate claim, or did not object to the curative instructions given when an objection was sustained (People v. Balls, 69 N.Y.2d 641, 511 N.Y.S.2d 586, 503 N.E.2d 1017; People v. Medina, 53 N.Y.2d 951, 441 N.Y.S.2d 442, 424 N.E.2d 276). We decline to review the comments in question in the interest of justice. If we were to review them, we would find that they were fair response to defendant's summation and, in any event, harmless in view of the overwhelming evidence of defendant's guilt (People v. Davis, 205 A.D.2d 403, 404, 613 N.Y.S.2d 610).