Opinion
(1038) KA 00-00594.
September 28, 2001.
(Appeal from Judgment of Monroe County Court, Geraci, Jr., J. — Criminal Possession Controlled Substance, 3rd Degree.)
PRESENT: PIGOTT, JR., P.J., HAYES, WISNER, KEHOE AND BURNS, JJ.
Judgment unanimously affirmed.
Memorandum:
County Court properly rejected defendant's Batson claim. The prosecutor offered a race-neutral explanation for the dismissal of a prospective juror, i.e., that the decision-making ability of the prospective juror might be affected by the fact that her husband's relatives previously had encounters with the criminal justice system ( see, People v. Craig, 194 A.D.2d 687, lv denied 82 N.Y.2d 716; see generally, People v. Allen, 86 N.Y.2d 101, 109). "Defendant's contention that the prosecutor's reason was pretextual is unpreserved for our review because defendant failed to articulate to the court `any reason why he believed that the prosecutor's explanations were pretextual'" ( People v. Bodine, ___ A.D.2d ___ [decided May 2, 2001], quoting People v. Santiago, 272 A.D.2d 418, lv denied 95 N.Y.2d 907).
Defendant did not object to the audibility of the audiotape of the drug buy or object to the audiotape being played to the jury and thus his contention that the audiotape is inaudible is not preserved for our review ( see, CPL 470.05; People v. Serrano, 170 A.D.2d 714, lv denied 77 N.Y.2d 967). Defendant further contends that the undercover officer who purchased the drugs from defendant should not have been permitted to interpret the contents of the audiotape because his testimony was thereby bolstered. We disagree. While the audiotape was being played to the jury, the undercover officer explained where he was and what was occurring. That testimony does not constitute bolstering ( see, People v. Lofton, 226 A.D.2d 1082, lv denied 88 N.Y.2d 938, 1022). In any event, any error in the admission of that testimony is harmless ( see, People v. Banks, 276 A.D.2d 304, lv denied 96 N.Y.2d 732).
We reject defendant's contention that the court erred in allowing the opinion testimony of a police officer concerning drug operations ( see, People v. Christian, 248 A.D.2d 960, 961, lv denied 91 N.Y.2d 1006; People v. Santiago, 243 A.D.2d 328, 329, lv denied 91 N.Y.2d 879; People v. Kelsey, 194 A.D.2d 248, 251-254). We further reject the contention of defendant that he received ineffective assistance of counsel. "[A]lthough counsel should have insisted that the People comply with his demand for a bill of particulars, we cannot conclude that the failure to do so is tantamount to ineffective assistance" ( People v. Claitt, 222 A.D.2d 1038, 1039, lv denied 88 N.Y.2d 982). Defendant failed to establish the absence of a strategic or other legitimate explanation for the other alleged inadequacies of counsel ( see, People v. Garcia, 75 N.Y.2d 973, 974; People v. Palmer, 278 A.D.2d 821, 822, lv denied 96 N.Y.2d 786; People v. Hales, 272 A.D.2d 984, 985, lv denied 95 N.Y.2d 935). Based on our review of the evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, we conclude that defendant received meaningful representation ( see, People v. Baldi, 54 N.Y.2d 137, 147). Finally, the sentence is neither unduly harsh nor severe.