People v. Davis

245 A.D.2d 526, 666 N.Y.S.2d 491, 1997 N.Y. App. Div. LEXIS 13219

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Cirigliano, J.), rendered June 21, 1995, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the seventh degree, and criminal impersonation in the second degree, after a nonjury trial, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant was convicted of various charges arising from, inter alia, his sale of crack cocaine to Christopher Lohbauer. The prosecution decided that Lohbauer was an essential witness against the defendant at trial and he testified under a grant of transactional immunity. On appeal, the defendant argues that the grant of immunity given Lohbauer encompassed any perjury that Lohbauer might have committed during his testimony at trial. Thus, the defendant argues, his conviction was based on, inter alia, testimony that was “unsworn” and unreliable. However, this argument was not raised before the trial court and is therefore not preserved for appellate review (see, CPL 470.05 [2]; People v Bynum, 70 NY2d 858; People v Udzinski, 146 AD2d 245, 250), and we decline to reach it in the exercise of our interest of justice jurisdiction. Rosenblatt, J. P., Ritter, Altman and Florio, JJ., concur.