Opinion
December 9, 1999
Judgment, Supreme Court, Bronx County (Peter Benitez, J.), rendered February 10, 1998, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to concurrent terms of 7 to 14 years, 7 to 14 years and 3 1/2 to 7 years, respectively, unanimously affirmed.
Heather Kenney for Respondent.
Cynthia Feathers for Defendant-Appellant.
ELLERIN, P.J., NARDELLI, WILLIAMS, RUBIN, ANDRIAS, JJ.
The court's denial of defendant's request for unredacted copies of the officers' daily activity reports was proper, since the omitted entries did not relate to the officers' testimony (People v. Barclift, 228 A.D.2d 194, lv denied 88 N.Y.2d 980). Defendant's contention that the omitted portions may have served to establish that the drug vials recovered in this case may have been confused with vials obtained in other undercover sales that day amounted to "speculation about possible impeachment use of report entries that were not relevant to the subject matter of the witness's testimony" (id.). This speculation does not invoke Rosario concerns (id.).
Defendant's contention that the undercover officer's testimony concerning his prior encounter with defendant created an inference that the latter was a drug dealer is not preserved for appellate review, since the defense agreed to the court's ruling that the testimony would be admitted subject to certain restrictions, and we decline to review it in the interest of justice. Were we to review this claim, we would find that the testimony was probative of identity and was not prejudicial since no evidence of uncharged crimes was elicited.
Defendant's contentions concerning the People's summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
We perceive no abuse of sentencing discretion.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.