PEOPLE v. SMITH (2005)

 Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ) and criminal possession of a controlled substance in the third degree (§ 220.16[1] ).   We reject defendant's contention that reversal is required based on Supreme Court's refusal to give an expanded identification charge.  “While the ‘better practice is to grant a defendant's request and give the expanded charge’ when identification is at issue (People v. Whalen, 59 N.Y.2d 273, 279 [464 N.Y.S.2d 454, 451 N.E.2d 212] ), the failure to so charge does not constitute reversible error where, as here, the court instructed the jury on the proper assessment of eyewitness testimony and the applicability of the reasonable doubt standard to identification” (People v. Lee, 284 A.D.2d 943, 943, 725 N.Y.S.2d 910, lv. denied 96 N.Y.2d 920, 732 N.Y.S.2d 637, 758 N.E.2d 663).

 Defendant's further contention that the court erred in allowing the undercover officer to bolster his own identification testimony is not preserved for our review because defendant objected to the testimony of that officer at trial on a ground different from that now asserted on appeal (see generally People v. Osuna, 65 N.Y.2d 822, 824, 493 N.Y.S.2d 119, 482 N.E.2d 915;  People v. Michele, 278 A.D.2d 17, 18, 716 N.Y.S.2d 856, lv. denied 96 N.Y.2d 803, 726 N.Y.S.2d 381, 750 N.E.2d 83;  People v. Major, 251 A.D.2d 999, 1000, 675 N.Y.S.2d 260, lv. denied 92 N.Y.2d 927, 680 N.Y.S.2d 469, 703 N.E.2d 281).   In any event, “it is well settled that improper bolstering occurs when a third party testifies to another witness's prior identification ․, which is not the case in the instant matter” (People v. Cortes, 173 A.D.2d 319, 319, 575 N.Y.S.2d 660;  see People v. Dai He Ou-Yang, 236 A.D.2d 554, 654 N.Y.S.2d 782, lv. denied 89 N.Y.2d 1034, 659 N.Y.S.2d 864, 681 N.E.2d 1311).

Finally, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: