Opinion
December 26, 1985
Appeal from the County Court of Tioga County (Siedlecki, J.).
Defendant first asserts on this appeal that he was deprived of a fair trial due to possible juror misconduct because of the alleged failure of a juror to disclose during voir dire that he knew a prosecution witness, an undercover police officer. However, despite the fact that knowledge of this alleged impropriety came to defense counsel during the trial, the issue was never raised at trial or at sentencing. It was only when an application for release on bail was made before another court that the issue was raised in affidavits. Thus, since the issue was not brought before the trial court at the earliest opportunity and properly preserved for review by an appellate court, it has been waived and will not be considered by this court (see, People ex rel. Green v La Vallee, 55 A.D.2d 958, lv denied 41 N.Y.2d 805; People v Mullen, 53 A.D.2d 933, affd 44 N.Y.2d 1; People v Cuyler, 44 A.D.2d 881, 882).
Defendant next argues that the trial court erred in allowing the prosecutor to examine a prosecution witness, State Trooper Susan Andrews, regarding a prior sale of marihuana for which defendant was never indicted, without a prospective ruling on the use of such testimony (see, People v Sandoval, 34 N.Y.2d 371, 377-378). This argument must be rejected. Here, defendant's attorney had already raised the defense of entrapment in his opening remarks to the jury, on voir dire and in cross-examination. The prior sale of marihuana was admissible in such circumstances to rebut the anticipated defense of entrapment to which defense was then committed (see, People v Mann, 31 N.Y.2d 253, 260; People v Thompson, 59 A.D.2d 996).
Defendant's contention, that since he proved the defense of entrapment by a preponderance of the evidence his conviction should be overturned as a matter of law, is not well taken. There was conflicting evidence on the question of entrapment. Thus, the issue was properly left for resolution by the trier of fact (People v McGee, 49 N.Y.2d 48, 61, cert. denied sub nom. Waters v New York, 446 U.S. 942; People v Shangraw, 55 A.D.2d 796).
Finally, defendant's argument that his sentence of 2 1/2 to 5 years in prison as a second felony offender was unduly harsh and excessive lacks merit. Unless there is a clear abuse of discretion on the part of the sentencing court, this court will not reduce a sentence (People v Ray, 105 A.D.2d 988, 989; People v Du Bray, 76 A.D.2d 976, 977). The instant sentence was within the statutory parameters and below the statutory maximum term of 3 1/2 to 7 years. No abuse of the sentencing court's discretion is demonstrated.
Judgment affirmed. Main, J.P., Mikoll, Yesawich, Jr., Levine and Harvey, JJ., concur.