PEOPLE v. WOODY

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

The PEOPLE, etc., respondent, v. Zachary WOODY, appellant.

Decided: July 19, 2004

FRED T. SANTUCCI, J.P., ROBERT W. SCHMIDT, SANDRA L. TOWNES, and REINALDO E. RIVERA, JJ. Virginia Boccio, North Massapequa, N.Y., for appellant. Denis Dillon, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Cristin N. Connell of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (Calabrese, J.), rendered December 18, 1998, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant contends that the prosecutor improperly elicited testimony from detectives and a confidential informant that they knew the defendant for several years prior to his arrest, thereby creating an inference that the defendant was a drug dealer.   This contention is not preserved for appellate review since the defendant failed to object to the testimony he now challenges (see CPL 470.05[2];  People v. Griffin, 246 A.D.2d 668, 669, 668 N.Y.S.2d 395).   In any event, this testimony did not deprive the defendant of a fair trial, since it “ ‘did not suggest to the jury that [the] defendant had engaged in prior misconduct, or had prior contact with law enforcement’ ” (People v. Gomez, 253 A.D.2d 719, 679 N.Y.S.2d 364, quoting People v. Greeman, 235 A.D.2d 281, 282, 652 N.Y.S.2d 521).

As the defendant failed to object to the portions of the prosecutor's summation which he challenges on appeal, his present contentions are unpreserved for appellate review (see People v. Ravenell, 307 A.D.2d 977, 978, 762 N.Y.S.2d 919;  People v. Brown, 297 A.D.2d 819, 747 N.Y.S.2d 811).   In any event, the prosecutor's comments either were fair responses to the defense counsel's summation comments (see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885;  People v. Salaman, 231 A.D.2d 464, 465, 647 N.Y.S.2d 739), or were “fair comment on the evidence” (People v. Campbell, 271 A.D.2d 693, 707 N.Y.S.2d 187;  see People v. Lamour, 203 A.D.2d 388, 610 N.Y.S.2d 73).

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

The defendant's remaining contentions are without merit.

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