People v. Torres, 2002-06556.

• Decision Date: 24 November 2003
• Docket Number: 2002-06556.
• Citation: 767 N.Y.S.2d 640,2003 NY Slip Op 18872,1 A.D.3d 621
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSE TORRES, Appellant.
• Court: New York Supreme Court — Appellate Division

1 A.D.3d 621

767 N.Y.S.2d 640

2003 NY Slip Op 18872

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSE TORRES, Appellant.

2002-06556.

Appellate Division of the Supreme Court of the State of New York, Second Department.

November 24, 2003.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered July 2, 2002, convicting him of criminal sale of a controlled substance in the fifth degree, after a nonjury trial, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant's contention that the trial court erred in admitting testimony that upon his arrest, the defendant was found to have $80 of "non-buy money" in his possession, is unpreserved for appellate review, as the defendant failed to object to this testimony at trial (see People v Miller, 126 AD2d 574 [1987]).

In any event, in a nonjury trial, absent a showing of prejudice, the trial court is presumed, "by virtue of . .. learning and experience, to have considered only the competent evidence adduced in reaching [its] determination" (People v Latella, 112 AD2d 324 [1985]). There is nothing in the record to suggest that this presumption is inapplicable here.

Moreover, even if the trial court had improperly considered such evidence, any resulting error was harmless under the circumstances of this case, where, inter alia, the eyewitness police testimony was strong and consistent, and prerecorded "buy" money was recovered from the defendant's person (see e.g. People v Arthur, 186 AD2d 661 [1992]). There is no significant probability that but for this error the defendant would have been acquitted (see People v Alfonso, 270 AD2d 280 [2000]).

S. Miller, J.P., Friedmann, Townes and Mastro, JJ., concur.