The People of the State of New York, Respondent, v. Wade Frank, Appellant

The People of the State of New York, Respondent, v Wade Frank, Appellant. [753 NYS2d 718] [MAJORITY] Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered November 27, 2000, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 8 to 16 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to a term of 6 to 12 years, and otherwise affirmed. Defendant failed to preserve his claim that the court should have given a limiting instruction as to the testimony of the two undercover officers that explained, by reference to common practices of drug dealers, the nonrecovery of drugs or buy money from defendant’s person, and we decline to review it in the interest of justice. Were we to review this claim, we would find no basis for reversal. In the first place, we note that these officers were fact witnesses who were not presented as experts, and that defendant himself elicited most of the evidence at issue and opened the door to the remainder. In any event, were we to find that an instruction should have been given (see People v Brown, 97 NY2d 500), we would find the error to be harmless in light of the overwhelming evidence of defendant’s guilt. We find the sentence excessive to the extent indicated. Concur — Tom, J.P., Saxe, Ellerin, Lerner and Marlow, JJ.