People v. Atkinson

179 A.D.2d 563, 579 N.Y.S.2d 875, 1992 N.Y. App. Div. LEXIS 744

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 28, 1992
• Status: Published

Opinion

Defendant did not object to the People’s background evidence on the narcotics trade and "buy and bust” operations, and thus his argument on appeal that such improperly bolstered the testimony of the undercover officer, the sole eyewitness, is unpreserved (CPL 470.05 [2]; People v Montrose, 155 AD2d 376, lv denied 75 NY2d 870), and we decline to reach it. If we were to reach the issue in the interest of justice, we would find that the evidence did not impermissibly bolster the testimony of the People’s witness (People v Matos, 165 AD2d 767, lv denied 76 NY2d 988), and was not otherwise improper. The testimony was admissible to explain why defendant did not have the buy money or any drugs in his possession when he was arrested shortly after the sale (People v Roman, 171 AD2d 562, lv denied 77 NY2d 1000). Similarly, the prosecutor’s comments on summation regarding this testimony (to which no objection was made) were permissible argument in response to the defense summation. There is no merit to defendant’s argument that the sentence, which did not greatly exceed the minimum permissible, was unduly harsh. Concur— Rosenberger, J. P., Wallach, Kupferman, Asch and Rubin, JJ.