People v. Collazo

176 A.D.2d 749

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 24, 1991
• Status: Published

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pesce, J.), rendered June 20, 1989, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the seventh degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant moved for a mistrial upon discovering that the undercover officer involved in this matter was present in the courtroom during a portion of the cross-examination of the arresting officer. We find that the denial of the defendant’s motion was a proper exercise of the court’s discretion (see, People v Ortiz, 54 NY2d 288). No request was made for the exclusion of witnesses before the undercover officer entered the courtroom. In any event, the defendant has failed to show any prejudice, as the court determined that the undercover officer was present for only about five minutes of the arresting officer’s testimony (cf., People v Leggett, 55 AD2d 990; People v M. J., 42 AD2d 717; People v Felder, 39 AD2d 373, affd 32 NY2d 747, appeal dismissed 414 US 948).

The defendant’s remaining contentions concerning the court’s charge are unpreserved for appellate review (see, People v Nuccie, 57 NY2d 818; People v Burns, 133 AD2d 642; People v Irazarry, 114 AD2d 1041), and we decline to review them in the exercise of our interest of justice jurisdiction. Thompson, J. P., Sullivan, Rosenblatt and O’Brien, JJ., concur.