Opinion
April 18, 1991
Appeal from the Supreme Court, New York County (Howard E. Bell, J.).
A police officer, using eight-power binoculars, observed defendant from the rooftop of a 12-story building from a distance of about 120-140 feet, selling vials of cocaine to two separate individuals. The two buyers were arrested in possession of the contraband, and defendant was subsequently apprehended while still in the officer's line of sight. The arresting backup officer seized two more vials of cocaine and a quantity of cash from defendant. Any inconsistencies between the testimony of the observing officer and the arresting backup officer were inconsequential, and in any event were within the province of the jury to resolve (People v. Rodriguez, 168 A.D.2d 210, 211).
Defendant's claim that a missing witness charge should have been given, raised for the first time on this appeal, is without merit. There is no reason to believe that other backup officers who had not observed the transactions could have provided material testimony of more than cumulative value (People v. Perez, 157 A.D.2d 581, lv denied 75 N.Y.2d 922; see, People v. Paez, 159 A.D.2d 259, lv denied 76 N.Y.2d 740).
The prosecutor's comments on summation, as tempered by curative instructions from the bench, were fair response to defendant's attack on the credibility of the People's witnesses (see, People v. Galloway, 54 N.Y.2d 396).
Concur — Murphy, P.J., Carro, Kupferman and Smith, JJ.