Opinion
October 7, 1991
Appeal from the Supreme Court, Kings County (Rienzi, J.).
Ordered that the judgment is affirmed.
The two arresting officers were parked in an unmarked vehicle at the intersection of Bushwick Avenue and Scholes Street at approximately 3:50 P.M. on July 25, 1989. They were assigned to serve as a back-up team for an undercover buy and bust operation which was to have been conducted several blocks away. Prior to instructing the undercover officer to set up the buy, the arresting officers, from their vantage point, observed the defendant transfer a glassine envelope, apparently containing narcotics, to one Carlos Batres in exchange for currency. The men were immediately arrested and searched. The police recovered $54 from the defendant's pocket, one glassine envelope from Batres and twelve glassine envelopes which had been thrown to the ground. Chemical analysis of the substance contained in the glassine envelopes revealed it to be heroin.
The defense sought to call the undercover officer as a witness on the ground that this witness's testimony regarding the timing of events surrounding the arrest might be at variance with the testimony of the arresting officers. The trial court denied the defendant's request, finding that the testimony of the undercover officer, who was not present at the arrest, was collateral to the defendant's guilt or innocence, would serve to confuse the jury and could jeopardize the safety and effectiveness of the undercover officer.
This court has held that "[t]he testimony of a defendant's witness should never be prospectively excluded as irrelevant unless his or her offer of proof reveals that the evidence is offered in palpable bad faith" (People v. Rouff, 163 A.D.2d 338, 339). Although the record does not reveal that the evidence sought to be introduced by the defendant was offered "in palapable bad faith", it was clearly collateral to the ultimate issue of the defendant's guilt and bore only on the arresting officers' credibility. As such, the admissibility of that evidence was a matter of discretion for the trial court (see, People v. Duncan, 46 N.Y.2d 74, cert denied 442 U.S. 910; People v Thomas, 116 A.D.2d 678). Had the witness been allowed to take the stand, it would not have been an improvident exercise of discretion to refuse to admit the evidence in question. In light of the overwhelming evidence of the defendant's guilt, the error in this regard was harmless beyond a reasonable doubt (see, People v. Crimmins, 36 N.Y.2d 230; see also, People v. Daly, 98 A.D.2d 803, affd 64 N.Y.2d 970). Mangano, P.J., Kunzeman, Miller and Copertino, JJ., concur.