Opinion
September 24, 1991
Appeal from the Supreme Court, New York County (Juanita Bing Newton, J.).
There was overwhelming evidence of defendant's guilt in connection with the sale of heroin to two buyers. Defendant complains, however, that the police officer who had observed the sales from his surveillance post violated the court's ruling barring testimony of uncharged sales occurring between the two sales with which defendant was charged.
To the extent the police officer's testimony violated the court's prior ruling, it constituted harmless error. The police officer's two passing references to uncharged crimes, one of which was not objected to, did nothing to strengthen the People's case and were not further referred to at any time during trial or the prosecutor's summation (cf., People v. Ortiz, 142 A.D.2d 248, 252-253). Further, defendant was charged with multiple crimes, and the facts adduced at trial tended to support the view that defendant and his accomplices were engaged in ongoing, street-level, drug trafficking (see, People v. Ventimiglia, 52 N.Y.2d 350, 361).
The trial court did not abuse its discretion in denying defendant's motion for a continuance in order to allow him to subpoena a retired police officer who had participated in the arrest of the buyers. (Matter of Anthony M., 63 N.Y.2d 270.) A motion for a continuance should generally be granted only where, among other things, that the witness is within the jurisdiction. (People v. Foy, 32 N.Y.2d 473; Matter of Freire, 121 A.D.2d 285.) Here, defense counsel conceded that the witness was in West Virginia. Nor did defendant demonstrate that the witness' proposed testimony would have been noncumulative and material.
Concur — Carro, J.P., Milonas, Ellerin, Ross and Asch, JJ.