Summary
holding that arrest photograph which, according to the undercover officer, depicted the defendant wearing the same sheepskin coat he wore when he sold him the drugs, did not constitute improper bolstering because "photographs are admissible to establish a defendant's appearance on the date of the crime"
Summary of this case from Dey v. ScullyOpinion
June 12, 1990
Appeal from the Supreme Court, New York County (John A.K. Bradley, J.).
Viewing the evidence in the light most favorable to the prosecution (People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish defendant's guilt beyond a reasonable doubt. Defendant called out to the undercover police officer, "how many", and then directed another person to sell drugs to the officer. Defendant, who perfectly matched the undercover's description, was thereafter arrested at the buy location.
We reject defendant's argument that the admission of his arrest photograph, combined with the undercover officer's testimony that the photograph depicted defendant wearing the same sheepskin coat he wore when he sold him the drugs, constituted improper bolstering of the undercover officer's identification testimony. Contrary to defendant's argument, photographs are admissible to establish a defendant's appearance on the date of the crime. (People v. Logan, 25 N.Y.2d 184, cert denied 396 U.S. 1020.)
Defendant has failed to preserve for appellate review his arguments that the arresting officer bolstered the undercover officer's identification by testifying as to the radio descriptions provided by the undercover officer and that the latter identified the three suspects in custody. (See, CPL 470.05; People v. West, 56 N.Y.2d 662.) Were we to consider these arguments in the interest of justice, we would find that reversal is not warranted since any error in this regard was harmless given the overwhelming evidence of guilt. Moreover, there was no danger that the jury would take the arresting officer's testimony as a substitute for the undercover officer's identification. (People v. Johnson, 57 N.Y.2d 969; People v. Burgess, 66 A.D.2d 667; People v. Jones, 158 A.D.2d 346.)
Defendant's contention that the court denied him a fair trial in failing to deliver an agency charge is both unpreserved (CPL 470.05) and meritless. (People v. Roche, 45 N.Y.2d 78, 86, cert denied 439 U.S. 958; People v. Lam Lek Chong, 45 N.Y.2d 64, 75; People v. Argibay, 45 N.Y.2d 45, 53.)
Concur — Sullivan, J.P., Ross, Kassal, Ellerin and Wallach, JJ.