Opinion
October 23, 1990
Appeal from the Supreme Court, Bronx County (Frank Torres, J.).
Police Officer John McCarthy observed defendant, through binoculars for 10 minutes in a Bronx park, engage in five transactions in which he accepted money in exchange for white packets. After each transaction defendant would approach a yellow bag beneath a nearby tree and touch it with his foot. The officer radioed to a patrol car to apprehend defendant and Javier and Jose Mercado, who were seen to accept three white packets in exchange for $30. Javier Mercado had three white packets of heroin in his possession when he was arrested. A loaded pistol was found in the yellow bag. Officer McCarthy, and Javier and Jose Mercado testified with regard to defendant's sale of three packets of heroin.
Defendant argues that it was error to allow Officer McCarthy to testify as to the prior transactions in violation of the Molineux rule (People v. Molineux, 168 N.Y. 264). This contention was not preserved for review by timely objection (People v. Qualls, 55 N.Y.2d 733; People v. Brown, 161 A.D.2d 527; CPL 470.05). If we were to consider the issue, we would find that the evidence of prior sales tended to establish the identity of the defendant (People v. Jones, 62 A.D.2d 356, 358) and was relevant to defendant's intent on the drug possession charge (People v. Marin, 157 A.D.2d 521, lv denied 75 N.Y.2d 968). As the evidence was probative of a relevant and material issue, the trial court properly exercised its discretion in determining that the probative value of the evidence outweighed its potential for prejudice (People v. Alvino, 71 N.Y.2d 233, 242).
The allegedly improper comments made by the prosecutor in summation were not preserved for review. Even if this claim had been preserved, it would not warrant reversal (People v. Reddish, 156 A.D.2d 195, 196).
Concur — Sullivan, J.P., Ross, Rosenberger, Kassal and Wallach, JJ.