PEOPLE v. PALUMBO (1999)

Defendant appeals from a judgment convicting him upon a jury verdict of six counts each 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 (Penal Law § 220.16[1] ).   The charges arose out of six separate sales of cocaine to an undercover police officer.

 The verdict is not against the weight of the evidence.   From our review of the record, we cannot conclude that the jury, in rejecting the agency and entrapment defenses, failed to give the evidence the weight it should be accorded (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 Defendant's contention that County Court improperly changed its Sandoval/Molineux ruling is without merit.   When it became apparent that defendant was asserting the defenses of agency and entrapment, the court did not err in concluding that defendant could be cross-examined concerning prior drug activity (see, People v. Stokes, 247 A.D.2d 919, 920, 668 N.Y.S.2d 425, lv. denied 91 N.Y.2d 977, 672 N.Y.S.2d 857, 695 N.E.2d 726).   Defendant failed to preserve for our review his contention that the court improperly permitted evidence of flight (see, CPL 470.05[2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).

 We reject defendant's contention that the People committed a Brady violation by failing to turn over a surveillance tape of the initial meeting between defendant and the undercover officer.   The issue whether another tape existed was thoroughly explored at trial, and the court determined that all existing tapes had been turned over to defendant.   We find no basis in the record to question that determination.

 By failing to object to the charge, defendant failed to preserve for our review his present contentions that the court's charge was erroneous in several respects.   In any event, the contentions are without merit.   The sentence is neither unduly harsh nor severe.   We have examined defendant's remaining contentions and conclude that they lack merit.

Judgment unanimously affirmed.

MEMORANDUM: