People v. Velez

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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 7, 1993
• Status: Published

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.