PEOPLE v. FERMIN

Defendant was arrested during a buy-and-bust operation during which an undercover police officer purchased two vials of crack cocaine from defendant and another man.

Defendant challenges the testimony elicited during redirect examination of the police sergeant supervising the operation regarding the general use of recording apparatus during a buy-and-bust and portions of the prosecutor's summation. These contentions were not preserved as a matter of law, and we decline to review them. In any event, we note that the redirect examination was a clarification of testimony initiated by the defense on the use of wires (cf., People v. Melendez, 55 N.Y.2d 445). Further, the prosecutor's statements in summation were directly responsive to that of the defense (see, People v Morgan, 66 N.Y.2d 255, on remand 116 A.D.2d 919, cert denied 476 U.S. 1120), did not "shift" the burden of proof (People v Rodriguez, 159 A.D.2d 356, 357, lv denied 76 N.Y.2d 795), and if improper, would be considered harmless in light of the overwhelming evidence of guilt (People v. Crimmins, 36 N.Y.2d 230, 237).

Concur — Kupferman, J.P., Sullivan, Carro and Smith, JJ.