
    The People of the State of New York, Respondent, v Jerome Murphy, Appellant.
   Appeal from a judgment of the County Court of Albany County, rendered March 28, 1974, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree, a class A-III felony. Defendant was charged with selling three bags of heroin to an undercover police officer. Upon his conviction after trial, he was sentenced to an indeterminate term of imprisonment with a minimum term of four years and a maximum term of his natural life (Penal Law, § 70.00, subds 2, 3). On this appeal, defendant questions the constitutionality of the sentencing provision of the Penal Law as it applies to him for he was barely 16 years of age at the time of the commission of the crime and a first felony offender (People v Broadie, 37 NY2d 100, 119). He also argues that the summation of the Assistant District Attorney exceeded the bounds of fair comment and was prejudicial. We reject both contentions. As to the constitutional issue, we find People v Broadie (supra) decisive and controlling. Nor do we regard the comments of the prosecutor as constituting anything other than a response to issues raised by the defendant in his own summation. Even if they could be considered error, it was indeed harmless in view of the proof offered by the People (People v Crimmins, 38 NY2d 407). Judgment affirmed. Koreman, P. J., Sweeney, Kane, Mahoney and Herlihy, JJ., concur.  