Opinion
January 28, 1992
Appeal from the Supreme Court, New York County (James J. Leff, J.).
Defendant did not object to the People's background evidence on the narcotics trade and "buy and bust" operations, and thus his argument on appeal that such improperly bolstered the testimony of the undercover officer, the sole eyewitness, is unpreserved (CPL 470.05; People v. Montrose, 155 A.D.2d 376, lv denied 75 N.Y.2d 870), and we decline to reach it. If we were to reach the issue in the interest of justice, we would find that the evidence did not impermissibly bolster the testimony of the People's witness (People v. Matos, 165 A.D.2d 767, lv denied 76 N.Y.2d 988), and was not otherwise improper. The testimony was admissible to explain why defendant did not have the buy money or any drugs in his possession when he was arrested shortly after the sale (People v. Roman, 171 A.D.2d 562, lv denied 77 N.Y.2d 1000). Similarly, the prosecutor's comments on summation regarding this testimony (to which no objection was made) were permissible argument in response to the defense summation. There is no merit to defendant's argument that the sentence, which did not greatly exceed the minimum permissible, was unduly harsh.
Concur — Rosenberger, J.P., Wallach, Kupferman, Asch and Rubin, JJ.