People v. Coltrain

—Judgment, Supreme Court, Bronx County (Dominic Massaro, J.), rendered April 1, 1992, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 25 years to life and AVz to 9 years, respectively, unanimously affirmed. Since the evidence showed that the deceased was killed by a dissatisfied drug buyer, and defendant’s case suggested, whether intentionally or not, that defendant was not likely to be a drug user, proof of defendant’s drug use at or about the time of the crime was probative (see, People v Hardwick, 140 AD2d 624, 625, lv denied 72 NY2d 957), notwithstanding that it reflected on defendant’s character (see, People v Moore, 42 NY2d 421, 428, cert denied 434 US 987). While some of this evidence was hearsay and opinion, this was harmless because the same facts were proven through competent evidence. In any event, any such error regarding this evidence was harmless in view of the overwhelming proof of guilt (People v Crimmins, 36 NY2d 230). Defendant’s arguments concerning the People’s summation are largely unpreserved, and, in any event, without merit, because the challenged portions of the summation were fair 182 responses to defense arguments (People v Galloway, 54 NY2d 396, 399). Defendant’s claim concerning lost Rosario material is unpreserved, due to his failure to request any sanction, and we decline to review it in the interest of justice. Concur — Rosenberger, J. P., Ellerin, Kupferman, Nardelli and Williams, JJ.