Opinion
June 4, 1992
Appeal from the Supreme Court, New York County (Frederic S. Berman, J.).
Evidence at trial established that the arresting officer observed defendant complete a street sale of two glassine envelopes of heroin to an apprehended purchaser, from whom the contraband was recovered.
Contrary to defendant's claim raised for the first time on appeal, the officer's single statement elicited on direct examination that he was "observing the area" because it was a "known drug trafficking area" cannot reasonably be viewed as linking defendant to general drug activity. The prosecutor's single question as to why the officer was "observing" was a proper attempt to provide background information explaining the officer's presence and conduct leading to defendant's arrest (see, e.g., People v. Hernandez, 139 A.D.2d 472, 477, lv denied 72 N.Y.2d 957). Moreover, the additional references to drug activity and other arrests by the narcotics team, cited as error for the first time on appeal, were elicited by defense counsel, apparently in an attempt to highlight the fact that no drugs were recovered from defendant's person at the time of his arrest.
Defendant acquiesced in the trial court's ruling that he had failed to make a threshold showing of entitlement to a missing witness charge, failed to take exception to the trial court's charge as given, and thus failed to preserve any claim of error for appellate review as a matter of law (see, People v. Ingram, 67 N.Y.2d 897, 899). In any event, the trial court properly denied the requested charge as defendant failed to show that the uncalled officer would be expected to provide noncumulative testimony favorable to the People (see, People v. Gonzalez, 68 N.Y.2d 424, 427).
Concur — Murphy, P.J., Carro, Milonas, Wallach and Smith, JJ.