People v. Velez

189 A.D.2d 572, 592 N.Y.S.2d 590, 1993 N.Y. App. Div. LEXIS 50

Opinion

Judgment, Supreme Court, Bronx County (William H. Wallace, III, J.), rendered February 26, 1990, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and three counts of criminal possession of a controlled substance in the third degree, and sentencing her, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously modified, on the law and as a matter of discretion in the interest of justice, to the extent of vacating the conviction under count two of the indictment for criminal possession of a controlled substance in the third degree, and dismissing that count of the indictment, and otherwise affirmed.

Defendant’s Rosario claim is unpreserved, as she never requested a sanction for the arresting officer’s destruction of his notes containing the substance of the undercover officer’s radioed description of defendant (People v Cruz, 172 AD2d 365, lv denied 78 NY2d 964). Similarly unpreserved is the claim that the arresting officer implicitly bolstered the undercover officer’s identification testimony, a claim which, in any event, is without merit since police testimony concerning a drive-by confirmatory identification in the context of a "buy and bust” operation does not constitute bolstering (People v Gonzalez, 172 AD2d 276, lv denied 77 NY2d 995).

We modify only to dismiss the possession count based on possession of the same heroin sold to the undercover officer (see, People v Gaul, 63 AD2d 563, lv denied 45 NY2d 780). Concur — Murphy, P. J., Carro, Rosenberger, Ross and Asch, JJ.