People v. Martinez

209 A.D.2d 641, 619 N.Y.S.2d 134

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Rosato, J.), rendered November 23, 1992, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by reversing the conviction of criminal possession of a controlled substance in the seventh degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

The People concede that criminal possession of a controlled substance in the seventh degree is a lesser-included offense of criminal possession of a controlled substance in the third degree. We agree and dismiss that count of the indictment as a matter of law (see, People v McDonald, 199 AD2d 539, 540).

In addition, it was error to permit the back-up officer to testify, over objection, that he had identified the defendant after conferring with the undercover detective who had observed the perpetrator, because such testimony constitutes improper bolstering (see, People v Holt, 67 NY2d 819, 821; see also, People v Trowbridge, 305 NY 471, 477-478; People v Faison, 126 AD2d 739, 739-740). However, the error was harmless in view of the overwhelming evidence of the defendant’s guilt (see, People v Johnson, 57 NY2d 969, 970-971; see also, People v Briggs, 156 AD2d 574, 574-575).

The sentence imposed was not excessive (see, People v Durkin, 132 AD2d 668, 669; see also, People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are either unpreserved for appellate review (see, CPL 470.05 [2]) or without merit. Sullivan, J. P., Rosenblatt, Pizzuto and Altman, JJ., concur.