Opinion
November 23, 1987
Appeal from the Supreme Court, Queens County (Dufficy, J.).
Ordered that the judgment is affirmed.
Upon the exercise of our factual review power, we are satisfied that the defendant's guilt was established beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see, CPL 470.15). Any questions of credibility and testimonial inconsistencies considered by the jury do not obviate the conclusion that the defendant's guilt was established beyond a reasonable doubt (see, People v. Storm, 114 A.D.2d 477; People v. La Borde, 76 A.D.2d 869; CPL 470.15). There was sufficient consistent credible testimony from the arresting officers to demonstrate the manner in which the defendant was approached, pursued, and searched, resulting in recovery of drugs found on his person.
The defendant's contention that he was denied a fair trial is similarly without merit. The evidence submitted regarding the uncharged crime of a drug sale by the defendant was properly before the jury as supporting the informational predicate for the initial police pursuit (People v. Montanez, 41 N.Y.2d 53, 58; People v. Johnson, 125 A.D.2d 701, 702, lv denied 69 N.Y.2d 882, 1005), and, when the defense counsel objected, any possible prejudice was promptly cured by the court's instruction (see, People v. Smith, 125 A.D.2d 614). The court properly instructed the jury as to those inferences which could be drawn from the prosecutor's failure to call one of the arresting officers as a witness (see, Noce v. Kaufman, 2 N.Y.2d 347, 353). Moreover, the defendant knew the officer's identity and elected not to call him (see, People v. Almodovar, 62 N.Y.2d 126, 132-133; People v Baldo, 107 A.D.2d 751, 752). Finally, the defendant failed to preserve for appellate review the allegedly prejudicial references by the prosecutor to the defendant's possession of money at the time of his arrest (see, People v. Howard, 125 A.D.2d 408, 409, lv denied 69 N.Y.2d 746; CPL 470.05). Thompson, J.P., Niehoff, Rubin and Sullivan, JJ., concur.