PEOPLE v. BAILEY (2000)

Judgment, Supreme Court, Bronx County (John Perone, J.), rendered July 17, 1997, 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 10 to 20 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to a term of 8 to 16 years, and otherwise affirmed.

 The court properly precluded defendant from commenting in summation upon the fact that the prosecution did not call all of the approximately 10 to 12 members of the field team involved in the overall operation.   The court did, however, permit counsel to comment on the failure to call the officer who was nearby.   Inexplicably, the defense attorney did not do so.   Although defendant was not required to request a missing witness charge or lay the foundation required for such a charge, he failed to establish the limited foundation required for comment on failure to call witnesses (People v. Porto, 226 A.D.2d 190, 641 N.Y.S.2d 9, lv. denied 88 N.Y.2d 992, 649 N.Y.S.2d 399, 672 N.E.2d 625).

 The court properly received in evidence, with proper limiting instructions, a narcotics security envelope bearing the notation “JD Yellow”.   This notation was not hearsay, since it was not introduced for its truth (see, People v. Huertas, 75 N.Y.2d 487, 554 N.Y.S.2d 444, 553 N.E.2d 992), but to establish that the drugs contained in the envelope and examined by the chemist were the same drugs that defendant had sold to the undercover officer.   In any event, the notation could not have caused any prejudice to defendant.

Defendant's challenge to testimony regarding the roles of the various participants in a typical drug transaction is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would find that this brief and limited testimony was warranted by the evidence.

 We find the sentence imposed to be excessive to the extent indicated.

MEMORANDUM DECISION.