People v. Donato

—Judgment, Supreme Court, New York County (Howard Bell, J.), rendered March 9, 1990, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third and fifth degrees, and sentencing him as a second felony offender to concurrent indeterminate prison terms of from 4 Vi to 9 years and 2 to 4 years, respectively, unanimously affirmed.

A police officer observed defendant hand two vials of crack to an individual holding a ten dollar bill. Upon arresting defendant, the officer also recovered eighteen vials of crack and $60 currency from defendant. The court properly admitted the $60 as evidence relevant to establish defendant’s intent to sell the two vials (People v Bell, 160 AD2d 477, lv denied 76 NY2d 784).

For the most part, defendant’s present argument that the prosecutor’s summation deprived him of a fair trial is unpreserved for appellate review (CPL 470.05 [2]). Defendant’s claim of prosecutorial misconduct in summation is preserved only to the extent that defense counsel lodged a single general objection to the prosecutor’s characterization of the individual holding the ten dollar bill as "a criminal out in the street.” However, there was no misconduct since this remark constituted fair response to defense counsel’s summation (People v Trinidad, 59 NY2d 820, 821) and was based on a reasonable inference from the evidence (People v Galloway, 54 NY2d 396). Carro, J. P., Wallach, Kupferman and Smith, JJ.