PEOPLE v. CONCEPCION (1999)

Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Jose CONCEPCION, appellant.

Decided: November 01, 1999

LAWRENCE J. BRACKEN, J.P., WILLIAM D. FRIEDMANN, GLORIA GOLDSTEIN and NANCY E. SMITH, JJ.

Lisa Manfro, Kew Gardens, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Lisa Drury, and Allison Wright of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Blumenfeld, J.), rendered November 8, 1996, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

There is no merit to the defendant's argument that he was deprived of a fair trial by prosecutorial misconduct. When a case is tried without a jury, absent a showing of prejudice, the Trial Judge is presumed to have considered only competent evidence adduced at trial in reaching the verdict (see, People v. Robinson, 143 A.D.2d 376, 377, 532 N.Y.S.2d 411). There is no basis for finding that the court considered anything but competent evidence.

MEMORANDUM BY THE COURT.

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