Opinion
September 26, 1994
Appeal from the Supreme Court, Queens County (Flug, J.).
Ordered that the judgment is affirmed.
On the evening of October 4, 1990, undercover police officers employed by the Queens County Narcotics Unit were conducting a "buy and bust" operation at the corner of 111th Road and Springfield Boulevard. During the operation, the defendant sold an undercover officer a quantity of crack cocaine, a transaction that a second undercover officer observed. The purchasing officer promptly radioed a description of the defendant to a back-up team, but the defendant was not arrested at that time.
Over the next several weeks, the two undercover officers, and other officers, continued the operation at the same general location. At approximately 4:30 P.M. on October 23rd, both officers observed the defendant carrying a brown paper bag and immediately recognized him as the individual involved in the October 4th transaction. The back-up team was called again and on this occasion, the defendant was arrested after the officer who purchased the drugs on October 4th identified him at the scene. Upon his arrest, the police recovered the bag the defendant had been carrying, which contained a quantity of cocaine.
On appeal, the defendant contends that the hearing court should have precluded admission of the identification testimony of the two undercover officers at the trial because of the People's failure to give written notice in accordance with CPL 710.30 of their prior viewings of the defendant on October 23rd. We disagree.
None of the observations of the defendant by the undercover officers on October 23rd constituted identification procedures requiring written notice in accordance with CPL 710.30. The initial observations of the defendant on October 23rd occurred during an ongoing undercover operation, at which time they recognized him as the same individual involved in the prior transaction (see, People v. Peterson, 194 A.D.2d 124, 129; see also, People v. Gissendanner, 48 N.Y.2d 543, 552). The subsequent confirmatory identification by the purchasing officer on the scene was to assure the back-up team that the right individual had been apprehended (see, People v. Wharton, 74 N.Y.2d 921; People v. Gissendanner, supra; People v. Morales, 37 N.Y.2d 262; People v. Duffy, 152 A.D.2d 704; People v. Aponte, 140 A.D.2d 702; cf., People v. Mato, 83 N.Y.2d 406; People v. Newball, 76 N.Y.2d 587).
While the prosecutor's remarks and comments with respect to the Grand Jury testimony of certain of the People's witnesses exceeded the bounds of a proper summation, inasmuch as such comments amounted to improper bolstering (see, People v. Davis, 44 N.Y.2d 269; People v. Nicholson, 168 A.D.2d 574; see generally, Richardson, Evidence § 519 [Prince 10th ed]) and did not relate to matters in evidence (see, People v. Ashwal, 39 N.Y.2d 105, 109), the error with respect to the remarks in question was harmless in light of the overwhelming identification evidence presented by the People (see, People v. Crimmins, 36 N.Y.2d 230).
We have examined the defendant's remaining contentions and find them to be without merit. Rosenblatt, J.P., Miller, Ritter and Hart, JJ., concur.