Decided on February 7, 2012
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Andrias, DeGrasse, Richter, Abdus-Salaam JJ.
Judgment, Supreme Court, New York County (Patricia Nunez, J.), rendered February 25, 2010, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the fourth degree, and sentencing him, as a second felony drug offender, to a term of 5 years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 ). The circumstances, viewed as a whole, supported the conclusion that defendant was a participant in a drug-selling operation being conducted out of a vacant apartment, and that he was a possessor of a large quantity of drugs contained in a knapsack in the apartment (see People v Jones, 72 AD3d 452, lv denied 15 NY3d 806 ).
The People's summation did not deprive defendant of his right to a fair trial. Given the context, the prosecutor's reference to the dangers of undercover police work was not a "safe streets" argument (see People v Brown, 17 NY3d 742, 743 ). Instead, this line of argument was a permissible rebuttal to defendant's argument that the police paperwork was inadequate (see People v Chandler, 265 AD2d 239 , lv denied 94 NY2d 902 ). The prosecutor's comment on the co-defendant's absence at trial was improper, but this isolated error was not so prejudicial as to warrant a new trial, particularly since the court's jury charge included an admonition to draw no inference from the co-defendant's absence. Defendant's remaining challenges to the prosecutor's summation are unpreserved (see People v Romero, 7 NY3d 911, 912 ), and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v Overlee, 236 AD2d 133 , lv denied 91 NY2d 976 ; People v D'Alessandro, 184 AD2d 114, 118-119 , lv denied 81 NY2d 884 ).
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 7, 2012
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