PEOPLE v. SMITH

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

The PEOPLE of the State of New York, Respondent, v. Eric SMITH, Defendant-Appellant.

Decided: October 22, 1998

Before NARDELLI, J.P., RUBIN, TOM and MAZZARELLI, JJ. Karla Sanchez, for Respondent. L. Jeffrey Norwalk, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered December 21, 1994, 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 6 to 12 years, unanimously affirmed.

Defendant's arrest photograph was properly admitted at trial to corroborate testimony by the undercover officer as to the clothing defendant was wearing at the time of the sale.   This was relevant to the accuracy of the officer's description and identification of defendant, which were issues presented at trial (People v. Vasquez, 236 A.D.2d 202, 653 N.Y.S.2d 330, lv. denied 89 N.Y.2d 1041, 659 N.Y.S.2d 872, 681 N.E.2d 1319;  see, People v. Logan, 25 N.Y.2d 184, 195-196, 303 N.Y.S.2d 353, 250 N.E.2d 454, cert. denied 396 U.S. 1020, 90 S.Ct. 592, 24 L.Ed.2d 513).   The photograph was not prejudicial, and the jury was clearly instructed that it was the arrest photograph taken for the instant case.

Defendant's claim that the sentence was based on the court's improper consideration of admissions made by the codefendant is unpreserved, and we decline to review it in the interest of justice.   If we were to consider it, we would find that the sentence was based entirely on reliable and accurate information.

MEMORANDUM DECISION.