People v. Mercado

156 A.D.2d 720, 549 N.Y.S.2d 175, 1989 N.Y. App. Div. LEXIS 16539

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Slavin, J.), rendered June 9, 1986, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention on appeal that the photograph taken of him at the time of his arrest should not have been admitted into evidence is unpreserved for appellate review as a matter of law because not only did defense counsel fail to object at trial to the admission of the photograph, he expressly consented to the admission of the photograph. In any event, contrary to the defendant’s argument on appeal, the arrest photograph was properly admitted in evidence because the appearance of the defendant had changed since the day of his arrest. It tended to establish that the defendant fit the description provided by the undercover agent immediately following the agent’s purchase of cocaine from the defendant. Therefore, the photographic evidence supplied information tending to establish material facts at issue in the trial (see, People v Corbett, 68 AD2d 772, affd 52 NY2d 714; People v Pobliner, 32 NY2d 356).

The defendant’s remaining contentions are unpreserved for appellate review as a matter of law, and, in any event, are without merit. Brown, J. P., Kunzeman, Harwood and Rosenblatt, JJ., concur.