PEOPLE v. BAILEY

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

The PEOPLE of the State of New York, Respondent, v. Calvin BAILEY, Defendant-Appellant.

Decided: April 27, 2000

SULLIVAN, P.J., NARDELLI, TOM, WALLACH and SAXE, JJ. Annica H. Jin, for Respondent. Alicia L. Young, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Colleen McMahon, J.), rendered October 9, 1996, 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 4 1/212 to 9 years, unanimously affirmed.

 Defendant was not deprived of a fair trial by the court's preclusion of cross-examination of the arresting officer concerning the lack of effort by the People to locate, as a potential prosecution witness, the buyer in this observation sale case.   This issue was entirely collateral, since there was no reason to expect the People to call the buyer in the first place (see, People v. Tamayo, 256 A.D.2d 98, 682 N.Y.S.2d 37, lv. denied 93 N.Y.2d 979, 695 N.Y.S.2d 66, 716 N.E.2d 1111;  People v. Parks, 237 A.D.2d 105, 654 N.Y.S.2d 365, lv. denied 90 N.Y.2d 862, 661 N.Y.S.2d 189, 683 N.E.2d 1063;  People v. Jenkins, 226 A.D.2d 116, 640 N.Y.S.2d 68, lv. denied 88 N.Y.2d 937, 647 N.Y.S.2d 171, 670 N.E.2d 455).   Contrary to defendant's claim, the People never insinuated that the buyer would have incriminated defendant.   The court's curative actions prevented the challenged portion of the People's summation from causing any prejudice.

MEMORANDUM DECISION.