PEOPLE v. OLIVO (2005)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ruchelsman, J.), rendered June 13, 2001, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the court committed reversible error in declining to instruct the jury on the inherent weakness of evidence of flight (see People v. Bennett, 79 N.Y.2d 464, 470, 583 N.Y.S.2d 825, 593 N.E.2d 279;  People v. Yazum, 13 N.Y.2d 302, 304, 246 N.Y.S.2d 626, 196 N.E.2d 263).   We disagree.   In light of the overwhelming direct evidence of the defendant's guilt, including the testimony of two police eyewitnesses, any error in failing to give the requested instruction was harmless (see People v. John, 221 A.D.2d 564, 565, 633 N.Y.S.2d 599;  People v. Jackson, 142 A.D.2d 599, 530 N.Y.S.2d 253).

The defendant's contentions that the prosecutor made improper remarks during his opening statement and summation and otherwise engaged in misconduct during the trial are largely unpreserved for appellate review (see CPL 470.05[2];  People v. Medina, 53 N.Y.2d 951, 441 N.Y.S.2d 442, 424 N.E.2d 276;  People v. Arroyo, 309 A.D.2d 870, 871, 766 N.Y.S.2d 51;  People v. Foy, 253 A.D.2d 889, 678 N.Y.S.2d 516).   In any event, the challenged remarks and conduct were either responsive to arguments made by defense counsel, constituted fair comment on the evidence, or otherwise did not deprive the defendant of a fair trial (see People v. Pearson, 20 A.D.3d 575, 799 N.Y.S.2d 155, lv. denied 5 N.Y.3d 831, 804 N.Y.S.2d 46, 837 N.E.2d 745;  People v. Joseph, 20 A.D.3d 435, 797 N.Y.S.2d 310;  lv. denied 5 N.Y.3d 807, 803 N.Y.S.2d 36, 836 N.E.2d 1159).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 83, 455 N.Y.S.2d 675).

The defendant's remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit.