Opinion
January 7, 1993
Appeal from the Supreme Court, Bronx County (William H. Wallace, III, J.).
Defendant's Rosario claim is unpreserved, as she never requested a sanction for the arresting officer's destruction of his notes containing the substance of the undercover officer's radioed description of defendant (People v. Cruz, 172 A.D.2d 365, lv denied 78 N.Y.2d 964). Similarly unpreserved is the claim that the arresting officer implicitly bolstered the undercover officer's identification testimony, a claim which, in any event, is without merit since police testimony concerning a drive-by confirmatory identification in the context of a "buy and bust" operation does not constitute bolstering (People v. Gonzalez, 172 A.D.2d 276, lv denied 77 N.Y.2d 995).
We modify only to dismiss the possession count based on possession of the same heroin sold to the undercover officer (see, People v. Gaul, 63 A.D.2d 563, lv denied 45 N.Y.2d 780).
Concur — Murphy, P.J., Carro, Rosenberger, Ross and Asch, JJ.