Opinion
November 15, 1989
Appeal from the Onondaga County Court, Cunningham, J.
Present — Callahan, J.P., Denman, Green, Pine and Balio, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from two convictions of criminal sale of a controlled substance in the third degree, defendant raises a number of contentions. None requires reversal. The officer's testimony about her mugshot identification of defendant did not constitute reversible error. No CPL 710.30 notice was required as the photo identification was merely confirmatory (see, People v Suren, 131 A.D.2d 896, 897, lv denied 70 N.Y.2d 804; People v Kearn, 118 A.D.2d 871, 872-873). Further, the testimony concerning the photo identification did not constitute improper bolstering (see, People v Caserta, 19 N.Y.2d 18, 21). The officer's testimony was elicited on cross-examination; the fact that defense counsel "opened the door" to the testimony renders the Caserta rule inapplicable and also waives the claim. Moreover, defendant did not object to the testimony, did not move to strike and did not allude to the claim of bolstering in moving for a mistrial; thus he has failed to preserve the claim for our review.
Testimony concerning defendant's "mugshot" and "rap sheet", which was inadvertently elicited by the prosecutor, did not deprive defendant of a fair trial. Further, there was no objection to the officer's testimony with respect to the presence of additional packets of cocaine on top of a desk in defendant's apartment at the time of the first buy. Thus defendant has failed to preserve his Molineux claim. In any event, such testimony did not show defendant's commission of other crimes.
The court did not err in admitting the cocaine because the testimony of the undercover officer and the police chemist established that the packets admitted into evidence were the same as those purchased by the officer and tested by the chemist, and demonstrated that those packets had not been tampered with (see, People v Julian, 41 N.Y.2d 340, 342-343). The record contains "reasonable assurances of the identity and unchanged condition of" the packets in question (People v Gamble, 94 A.D.2d 960).
The court's charge on reasonable doubt did not deprive defendant of a fair trial (see, People v Jimenez, 147 A.D.2d 905, lv denied 73 N.Y.2d 978; People v Luis, 145 A.D.2d 960, 961, lv denied 73 N.Y.2d 923; People v Price, 144 A.D.2d 1013, lv denied 73 N.Y.2d 895). We have reviewed defendant's remaining contentions and conclude that they are without merit.