People v. Garcia

Judgment, Supreme Court, New York County (Michael Obus, J.), rendered May 25, 2001, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously affirmed.

At the instant retrial, at which defendant did not testify, the court properly permitted the People to introduce a portion of defendant’s testimony at his first trial, and to argue that this testimony was false and that it evinced defendant’s consciousness of guilt. This testimony was probative (see People v Bennett, 79 NY2d 464, 470 [1992]), and the People introduced independent evidence of its falsity that was distinct from the evidence they presented to establish defendant’s guilt of criminal sale of a controlled substance, the only charge upon which he was being retried (see People v Abdul-Malik, 61 AD2d 657, 661-663 [1978]).

Defendant did not preserve his argument that, in view of his acquittal of third-degree drug possession at his first trial, the doctrine of collateral estoppel barred certain police testimony *151received at his second trial, and we decline to review it in the interest of justice. Were we to review this claim, we would find that the error, if any, was harmless (see People v Crimmins, 36 NY2d 230 [1975]). Concur—Mazzarelli, J.P., Saxe, Friedman, Marlow and Gonzalez, JJ.