Opinion
November 17, 1994
Appeal from the Supreme Court, Bronx County (Joseph Fisch, J.).
Viewing the evidence in the light most favorable to the People (People v. Acosta, 80 N.Y.2d 665, 672), and giving deference to the jury's finding of credibility (People v. Bleakley, 69 N.Y.2d 490, 495), we conclude that defendant's guilt of selling five vials of crack cocaine was proved beyond a reasonable doubt by legally sufficient evidence, including the undercover officer's description regarding defendant's distinctive facial hair, and defendant's arrest in the vehicle where the sale occurred while still in possession of the buy money given to him minutes earlier. A different result is not warranted because additional vials which the undercover officer observed in defendant's hands during the sale were not recovered (People v. Albelo, 199 A.D.2d 79, lv denied 83 N.Y.2d 802).
Defendant's claim regarding the People's failure to give him CPL 710.30 notice prior to using his arrest photograph at trial is unpreserved for appellate review as a matter of law (People v Rivera, 53 N.Y.2d 1005), and we decline to review it in the interest of justice. In any event, if we were to review, we would find that the photograph was properly admitted to show a change in defendant's appearance since the incident (People v. Larry, 178 A.D.2d 282, lv denied 79 N.Y.2d 1003).
We have reviewed defendant's remaining pro se contentions and find them to be without merit.
Concur — Sullivan, J.P., Wallach, Ross, Rubin and Williams, JJ.