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

The PEOPLE of the State of New York, Respondent, v. Shawn CARTER, Appellant.

Decided: April 23, 1998

Before CARDONA, P.J., and WHITE, PETERS, SPAIN and CARPINELLO, JJ. David Seth Michaels, Spencertown, for appellant. Beth G. Cozzolino, District Attorney (Kenneth L. Golden, of counsel), Hudson, for respondent.

Appeal from a judgment of the County Court of Columbia County (Leaman, J.), rendered October 18, 1996, upon a verdict convicting defendant of two counts of the crime of criminal sale of a controlled substance in the third degree.

During a “buy and bust” operation in the City of Hudson, Columbia County, undercover police officers, working with a confidential informant, approached defendant on March 13, 1996 and on April 11, 1996.   On March 13, 1996, defendant sold two bags of cocaine to State Trooper Robert Missenis while he and the confidential informant remained in the car.   On April 11, 1996, Missenis, after purchasing $50 worth of cocaine from Jason Cruz, a codefendant, observed defendant ask Cruz for $20 from that transaction.

After a Wade hearing, defendant was tried jointly with Cruz.   Ultimately convicted of two counts of criminal sale of a controlled substance in the third degree, defendant was sentenced as a second felony offender to concurrent prison terms of 8 to 16 years on each count.   Defendant appeals.

 Defendant's ineffective assistance of counsel claim is grounded upon his attorney's failure to object to testimony of both the undercover officer and the backup officers whose testimony purportedly bolstered Missenis' identification of defendant.   In the absence of the ineffective assistance claim, we would decline to review the issue since no objection was made at trial to the testimony of these officers (see, People v. Rosado, 191 A.D.2d 262, 595 N.Y.S.2d 20, lv. denied 81 N.Y.2d 1019, 600 N.Y.S.2d 207, 616 N.E.2d 864).   However, viewing the effectiveness of counsel's representation under the totality of these circumstances (see, People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400), we find no failure in the representation rendered and further find a reasonable basis for counsel's failure to object to such testimony as improper bolstering.

 While the in-court identification of a defendant may not be bolstered by the testimony of a previous identification (see, People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841), confirmatory identification in a buy and bust narcotics operation does not necessarily constitute such improper bolstering (see, People v. Wharton, 74 N.Y.2d 921, 550 N.Y.S.2d 260, 549 N.E.2d 462).  Here, neither Missenis' testimony about his prior identification of defendant (see, People v. Sarmiento, 168 A.D.2d 328, 565 N.Y.S.2d 1, affd. 77 N.Y.2d 976, 571 N.Y.S.2d 906, 575 N.E.2d 392) nor the backup officers' testimony about their confirmatory identification (see, People v. Alvarez, 211 A.D.2d 425, 620 N.Y.S.2d 381, affd. 86 N.Y.2d 761, 631 N.Y.S.2d 130, 655 N.E.2d 171) constituted the type of testimony which is prohibited.

With no merit found in defendant's remaining contentions (see, People v. Cruz, 244 A.D.2d 803, 666 N.Y.S.2d 274), we affirm the judgment of County Court.

ORDERED that the judgment is affirmed.

PETERS, Justice.


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