PEOPLE v. LANIER (2008)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Blumenfeld, J.), rendered June 29, 2006, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that he was denied a fair trial because the court permitted a police detective to testify about the roles of participants in a street-level narcotics sale is unpreserved for appellate review (see CPL 470.05[2];  People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89;  People v. Salnave, 41 A.D.3d 872, 838 N.Y.S.2d 657;   People v. Malave, 7 A.D.3d 542, 775 N.Y.S.2d 588).   In any event, given that the theory of the prosecution was that the defendant and a codefendant acted in concert in the sale of narcotics, the challenged testimony was not improper (see People v. Brown, 97 N.Y.2d 500, 505, 743 N.Y.S.2d 374, 769 N.E.2d 1266).

 The defendant also failed to preserve for appellate review his contention that certain comments made by the prosecutor during summation deprived him of a fair trial, as he failed to object to the subject remarks (see CPL 470.05[2];  People v. Romero, 7 N.Y.3d at 912, 828 N.Y.S.2d 274, 861 N.E.2d 89;  People v. Malave, 7 A.D.3d 542, 775 N.Y.S.2d 588).   In any event, the challenged remarks did not exceed the bounds of rhetorical comment permissible in closing argument and were fair comment upon the evidence (cf. People v. Arce, 42 N.Y.2d 179, 189-190, 397 N.Y.S.2d 619, 366 N.E.2d 279;  People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564).