PEOPLE v. CORREA

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Jose CORREA, Defendant-Appellant.

Decided: March 31, 2005

ELLERIN, J.P., NARDELLI, WILLIAMS, GONZALEZ, SWEENY, JJ. Laura R. Johnson, The Legal Aid Society, New York (Kerry Elgarten of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Tracy Siligmueller of counsel), for respondent.

Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered August 18, 2003, 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 5 1/212 to 11 years, unanimously affirmed.

 The undercover officer's testimony that she recognized defendant from a prior occasion did not constitute evidence of an uncharged crime.   Although the officer provided a few details of the prior incident, some of which were elicited by defendant on cross-examination, there was no implication that the prior contact arose out of an arrest or any bad acts, and the testimony was material and relevant to the contested issue of defendant's identity as the seller (see People v. Williams, 12 A.D.3d 183, 783 N.Y.S.2d 581 [2004] ).   In any event, even assuming that the challenged testimony constituted evidence of an uncharged crime, its probative value regarding the officer's ability to identify defendant outweighed its prejudicial effect (see e.g. People v. Matthews, 276 A.D.2d 385, 714 N.Y.S.2d 479 [2000], lv. denied 96 N.Y.2d 736, 722 N.Y.S.2d 803, 745 N.E.2d 1026 [2001] ).

We perceive no basis for reducing the sentence.