People v. Bosa

214 A.D.2d 328, 625 N.Y.S.2d 18, 1995 N.Y. App. Div. LEXIS 3650

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 4, 1995
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Lawrence Bernstein, J.), rendered June 11, 1993, convicting defendant, after a jury trial, of criminal possession 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.

In this "observation sale” case in which the defendant sold a glassine of narcotics to an apprehended buyer, the prosecutor also elicited direct testimony from the observing officer that after the above sale, she observed the defendant sell a glassine on two other occasions to unapprehended individuals. Defendant was not charged with the latter two sales.

Defendant’s contention that the trial court improperly admitted evidence of uncharged crimes is unpreserved for appellate review, the defendant having failed to object to the admission of such testimony (People v Bilbatua, 208 AD2d 404), and we decline to review it in the interest of justice. Were we to review it, we would find it to be without merit. Although the prosecutor should have sought an advance ruling from the court on the admissibility of the uncharged sales, such error was harmless since such evidence was admissible to prove that defendant possessed narcotics with the intent to sell them (People v Battes, 190 AD2d 625, lv denied 81 NY2d 1011), notwithstanding the presence of other evidence bearing on intent (People v Archibald, 211 AD2d 451). We perceive no abuse of sentencing discretion. Concur—Rubin, J. P., Kupferman, Ross, Asch and Tom, JJ.