Opinion
January 19, 1988
Appeal from the County Court, Westchester County (Braatz, J.).
Ordered that the judgments are affirmed.
After the defendant was arrested for possession of cocaine, an undercover operation was initiated during which the defendant sold cocaine to an undercover police officer on three separate occasions. At trial, the defendant raised the affirmative defense of entrapment.
We find that the trial court delivered a balanced charge to the jury and did not err in failing to instruct the jury that the police witnesses were interested as a matter of law. "It is proper for a trial court to charge that a defendant is an interested witness (see, People v Ochs, 3 N.Y.2d 54, 56; People v Stokes, 117 A.D.2d 693, 694), provided the court also indicates that the prosecution's witnesses may be interested [as the court charged herein] (see, People v Reyes, 118 A.D.2d 666; People v Astol, 118 A.D.2d 578; People v Brabham, 77 A.D.2d 626; People v Srbu, 51 A.D.2d 978)" (People v Suarez, 125 A.D.2d 350, lv denied 69 N.Y.2d 750; see, People v Melvin, 128 A.D.2d 647). The determination of whether a witness is interested in the outcome of a case is ordinarily a question of fact for the jury's determination (People v Gerdvine, 210 N.Y. 184; People v Suarez, supra; People v Reyes, 118 A.D.2d 666, lv denied 67 N.Y.2d 1056; People v Srbu, 51 A.D.2d 978).
Moreover, since defense counsel failed to object to that portion of the charge in which the Trial Judge instructed the jury as to the defendant's burden of proving his affirmative defense of entrapment, the issue of law raised by him with respect thereto has not been preserved for our view (CPL 470.05; People v Thomas, 50 N.Y.2d 467; People v Mincione, 131 A.D.2d 600, lv denied 70 N.Y.2d 715; People v Giles, 87 A.D.2d 636). In any event, we find the defendant's contention as to the impropriety of the charge as given to be without merit (People v Laietta, 30 N.Y.2d 68, cert denied 407 U.S. 923; People v Forsman, 128 A.D.2d 635). Mollen, P.J., Thompson, Rubin and Spatt, JJ., concur.