PEOPLE v. MAUPIN (2000)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Leach, J.), rendered July 24, 1997, convicting him of criminal possession of a controlled substance in the second degree, criminal possession of a controlled substance in the third degree, criminal possession of a weapon in the third degree, and criminally using drug paraphernalia in the second degree (three counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contentions concerning alleged misconduct by the prosecutor during the trial are unpreserved for appellate review (see, CPL 470.05[2] ).   In any event, the alleged misconduct did not prejudice the defendant and, therefore, reversal is not required (see, People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885;  People v. Roopchand, 107 A.D.2d 35, 485 N.Y.S.2d 332, affd. 65 N.Y.2d 837, 493 N.Y.S.2d 129, 482 N.E.2d 924).   The record does not support the defendant's claim that the prosecutor knew that the confidential informant might not testify.   Thus, her opening statement concerning the informant's expected testimony was not made in bad faith.   Moreover, the court properly limited the testimony of other witnesses concerning the informant upon learning that he would not testify (see, People v. Canada, 157 A.D.2d 793, 550 N.Y.S.2d 392).   The court properly instructed the jury to disregard certain comments made by the prosecutor when she objected to the cross-examination of one of the People's witnesses, thereby ameliorating any prejudice (see, People v. Rodriguez, 174 A.D.2d 763, 571 N.Y.S.2d 786).   In light of the overwhelming evidence of the defendant's guilt, any alleged misconduct was harmless (see, People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787;  cf., People v. Cruz, 98 A.D.2d 726, 469 N.Y.S.2d 138).

Viewing the defense counsel's conduct in its entirety, the defendant was not deprived of the effective assistance of counsel (see, People v. Rivera, 71 N.Y.2d 705, 708, 530 N.Y.S.2d 52, 525 N.E.2d 698;  People v. Baldi, 54 N.Y.2d 137, 146-147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. Wells, 187 A.D.2d 745, 591 N.Y.S.2d 44).

MEMORANDUM BY THE COURT.