Opinion
March 25, 1985
Appeal from the Supreme Court, Suffolk County (Jaspan, J.).
Judgment affirmed.
Defendant has failed to demonstrate that he was prejudiced by the fact that portions of the jury voir dire had not been recorded ( see, People v. Pepper, 59 N.Y.2d 353, 358-359), and in any event, since it was never requested that the voir dire be recorded, failure to do so did not constitute error ( People v Begg, 86 A.D.2d 693). A proper foundation was established for the admission into evidence of the tape recording of telephone conversations between defendant and the undercover officer ( People v. McGee, 49 N.Y.2d 48, 60, cert denied sub nom. Waters v New York, 446 U.S. 942; People v. Tayeh, 96 A.D.2d 1045). It was not an abuse of discretion for the trial court to permit the undercover officer to testify about a prior conversation with defendant in which defendant said he had cocaine. The limited background evidence was highly probative to show defendant's intent, his involvement in the sale and the absence of misidentification ( People v. Vails, 43 N.Y.2d 364, 368-369; People v. Montanez, 41 N.Y.2d 53, 58; cf. People v. Tucker, 102 A.D.2d 535). Any prejudice which might have arisen from the codefendant's brief reference to defendant "cutting" cocaine on a prior occasion was alleviated by the court's prompt instruction to the jury to disregard the testimony ( People v. Santiago, 52 N.Y.2d 865, 866).
We have examined defendant's remaining contentions and find them to be without merit. Mangano, J.P., Gibbons, Brown and Lawrence, JJ., concur.