PEOPLE v. JOHNSON (2001)

Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered September 14, 1998, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously affirmed.

The verdict was not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Issues of credibility were properly presented to the jury and there is no reason to disturb its determinations.

 In this observation sale case, the court properly admitted photographs of the crime scene taken from the officer's observation post with the use of a lens replicating the degree of magnification provided by the officer's binoculars.   These photographs were properly authenticated through the testimony of the observing officer and testimony from the photographer was not required (see, People v. Byrnes, 33 N.Y.2d 343, 352 N.Y.S.2d 913, 308 N.E.2d 435).   The court also properly denied defendant's request for a missing witness charge with respect to the photographer who took the photos since defendant made no prima facie showing that the photographer would have provided material, non-cumulative testimony.   Aside from the officer's authentication testimony, the People also introduced expert testimony from the photographer's supervisor.   This testimony established that the photographs were taken in accordance with standardized procedure, and testimony from the actual photographer would have added nothing (cf., People v. Atkins, 273 A.D.2d 11, 709 N.Y.S.2d 39).

 The court properly denied defendant's untimely request for an adverse inference charge, made at the close of trial, based on the People's failure to introduce the officer's binoculars into evidence.   The People were under no obligation to place the binoculars in evidence, and defendant never sought to examine the binoculars or to have them produced in order to introduce them as a defense exhibit.