People v. Williams

Appeal by defendant from a judgment of the County Court, Orange County (Ritter, J.), rendered August 20, 1982, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

Although our review of the record indicates that the prosecutor improperly elicited testimony concerning defendant’s alleged possession of a controlled substance which was not charged in the indictment, we note that defendant’s opening referred to the defense of entrapment. Additionally we find that there was no significant probability that the jury would have acquitted defendant had the error not occurred (cf. People v Calvano, 30 NY2d 199; People v Mann, 31 NY2d 253; People v Ventimiglia, 52 NY2d 350). The inherently consistent and unimpeached testimony of the People’s witnesses over*1018whelmingly established defendant’s knowing possession and sale of heroin. Defendant did not elicit one iota of evidence which would negate the People’s proof. Accordingly, we hold that the error was harmless and reversal is not warranted on that ground.

We have reviewed defendant’s remaining contentions and find them to be without merit. Mollen, P. J., Gibbons, Rubin and Kooper, JJ., concur.