The People of the State of New York, Respondent, v. Alan Walker, Appellant

The People of the State of New York, Respondent, v Alan Walker, Appellant. [671 NYS2d 222] [MAJORITY] —Judgment, Supreme Court, New York County (Ira Beal, J.), rendered July 2, 1996, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, to concurrent prison terms of 4V2 to 9 years and 6 months, respectively, unanimously affirmed. The court exercised sound discretion in denying defendant’s motion for a mistrial with prejudice, after it was revealed for the first time during the arresting officer’s direct testimony that the buy money that had been recovered from defendant and vouchered was no longer retrievable. Defendant failed to demonstrate either prosecutorial misconduct or any real prejudice to his defense warranting the drastic remedy sought (People v Morrison, 235 AD2d 501, lv denied 89 NY2d 1038; see also, People v Haupt, 71 NY2d 929, 931). It should be noted that the court gave an adverse inference charge favorable to defendant. Defendant’s claim that the prosecutor violated the court’s Sandoval ruling is unpreserved for appellate review due to lack, of specific objection (People v Wilkens, 239 AD2d 105, lv denied 90 NY2d 899), and we decline to review it in the interest of justice. Were we to review this claim, we would find that defendant opened the door to the questioning by his misleading testimony concerning his prior felony drug possession conviction (People v Hunter, 235 AD2d 378, lv denied 89 NY2d 1094). In any event, any error would have been harmless in light of the overwhelming evidence of defendant’s guilt. Concur — Sullivan, J. P., Rosenberger, Rubin and Tom, JJ.