People v. Alvarez

211 A.D.2d 425, 620 N.Y.S.2d 381, 1995 N.Y. App. Div. LEXIS 146

Opinions

Judgment, Supreme Court, Bronx County (Dominic Massaro, J.), rendered July 20, 1992, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4 Vi to 9 years, affirmed.

The trial court’s issuance of a proper Allen charge, after its questionable supplemental instruction to the jury to "accommodate” inconsistencies, alleviated any prejudice that may have been caused by that prior instruction. Defendant’s claim that the court gave an improper adverse inference charge is not preserved for appellate review as a matter of law (People v Nunez, 182 AD2d 527, lv denied 80 NY2d 836), and we decline to review it in the interest of justice since, to the extent the charge may have implied that defendant’s decision not to testify was a trial strategy, the error if any, when viewed in the context of the entire charge was harmless. Contrary to defendant’s claim, the charge did not unambiguously convey that the defendant should have testified (see, People v Autry, 75 NY2d 836, 839).

Defendant’s final claim that the arresting officer bolstered the undercover officer’s identification testimony is also not preserved as a matter of law, and, in any event without merit. In the context of buy-and-bust operations, neither police testimony as to a confirmatory drive-by identification (People v Rosado, 191 AD2d 262, 263, lv denied 81 NY2d 1019), nor an undercover’s description of the seller given to an arresting officer (People v Sarmiento, 168 AD2d 328, 329, affd 77 NY2d 976) constitutes bolstering. Concur—Wallach, Kupferman and Asch, JJ.