| People v Howard |
| 2008 NY Slip Op 01169 [48 AD3d 481] |
| February 5, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DaleHoward, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Solomon Neubortof counsel; Marc T. Ladd on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DiMango,J.), rendered April 16, 2001, convicting him of criminal sale of a controlled substance in the thirddegree and criminal possession of marijuana in the fifth degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant was arrested pursuant to a "buy and bust" narcotics operation, wherein he soldnarcotics to an undercover officer. At the time of his arrest, the defendant was in possession of acigar that tested positive for marijuana. He was convicted of criminal sale of a controlledsubstance in the third degree and criminal possession of marijuana in the fifth degree. On appeal,the defendant contends that the People's opening statement deprived him of a fair trial byreferring to his "business" of narcotics selling, and that the People improperly cross-examined thedefense witnesses on their failure to provide exculpatory information to law enforcementauthorities prior to trial.
The defendant failed to timely object to the prosecutor's allegedly improper remarks duringthe opening statement and did not request a mistrial. As a result, the defendant did not preservefor appellate review his contention that certain comments made by the prosecutor during theopening statement deprived him of a fair trial (see CPL 470.05 [2]; People v Gardner, 27 AD3d 482[2006]).
The defendant also failed to preserve for appellate review his contention that the prosecution[*2]improperly cross-examined the defense witnesses on theirpretrial silence (see CPL 470.05; People v Miller, 89 NY2d 1077, 1079 [1997];People v Materon, 276 AD2d 718, 719 [2000]). In any event, any error was harmless, asthere was overwhelming evidence of the defendant's guilt, and no significant probability that thealleged improprieties in prosecution's opening statement or cross-examination of defensewitnesses contributed to the convictions (see People v Crimmins, 36 NY2d 230, 241-242[1975]; People v Pierre, 35 AD3d893 [2006]; People v Materon, 276 AD2d 718 [2000]). Spolzino, J.P., Ritter, Millerand Dickerson, JJ., concur.