PEOPLE v. JACKSON (2000)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Roman, J.), rendered August 13, 1997, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

There is no merit to the defendant's contention that the trial court erred in refusing to allow defense counsel, in summation, to refer to the absence at trial of a police officer who acted as the so-called “ghost” officer during the buy-and-bust operation.   The record does not indicate that this officer participated in the transaction, and it was not his function to make any observations of the transaction.   Thus, the defendant failed to show that the testimony would have been material and noncumulative (see, People v. Bradshaw, 223 A.D.2d 651, 652, 636 N.Y.S.2d 844;  People v. Porto, 226 A.D.2d 190, 641 N.Y.S.2d 9).   Additionally, the People made this witness available to defense counsel, who interviewed him and declined to call him as a witness.   Under the circumstances presented, defense counsel was not entitled to make the proposed remarks during summation (see, People v. Bradshaw, supra).

The defendant's sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

MEMORANDUM BY THE COURT.