Opinion
January 6, 2000
Judgment, Supreme Court, Bronx County (Edward Davidowitz, J., at hearing; Roger Hayes, J., at jury trial and sentence), rendered June 6, 1996, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as second felony offender, to a term of 5 to 10 years, unanimously affirmed.
Stuart Levy for Respondent.
Gerald E. Bodell for Defendant-Appellant.
ROSENBERGER, J.P., NARDELLI, ELLERIN, SAXE, BUCKLEY, JJ.
By failing to make a timely motion pursuant to CPL 190.50(5)(c), defendant has waived his claim that he was denied his right to testify before the Grand Jury.
Defendant's suppression motion was properly denied. Defendant failed to preserve his argument that the arresting officer's testimony was insufficient to establish probable cause in this undercover sale case (see, People v. Jones, 178 A.D.2d 302, lv denied 79 N.Y.2d 1003), and we decline to review it in the interest of justice. Were we to review this claim, we would find that the arresting officer's testimony concerning the radio transmissions he received from the undercover officer concerning the drug transaction and the description of the seller was sufficient (see,People v. Petralia, 62 N.Y.2d 47, cert denied 469 U.S. 852; People v. Brown, 238 A.D.2d 204, lv denied 90 N.Y.2d 1012). Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.