People v. Johnson

169 A.D.2d 684, 565 N.Y.S.2d 64, 1991 N.Y. App. Div. LEXIS 822

Opinion

Judgment, Supreme Court, New York County (Howard Bell, J.), rendered July 27, 1989, 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 two concurrent indeterminate prison terms of from 4 Vi to 9 years, unanimously affirmed.

The record leaves no reasonable doubt that defendant was the individual who sold the undercover police officer five vials of crack in exchange for $25 in prerecorded buy money. The undercover officer observed the defendant from a distance of 3 to 4 feet for approximately 2 Vi minutes, and moments later, confirmed that the proper person was in custody. At the time of arrest, two vials of crack enclosed by pink caps were found at defendant’s feet, of the same type of those sold earlier to the undercover officer. Additionally, $25 in prerecorded buy money was recovered from defendant’s person.

Defendant failed to preserve his objection to the court’s identification charge. We note however, that the identification charge, as given, was sufficient, and that any error with respect to the charge in this case would be harmless in view of the overwhelming evidence of guilt. (People v Whalen, 59 NY2d 273.) Concur—Milonas, J. P., Wallach, Asch, Kassal and Smith, JJ.