People v. Delgado , 578 N.Y.S.2d 518 ( 1991 )

Rubin, J. (concurring.)

On the afternoon of July 26, 1989, an undercover officer encountered defendant on Boynton Avenue in Bronx County, calling out, "Nickels. Nickels.” The officer asked defendant for two "nickels” and was told that defendant’s "boy” (Louis Rivera) had gone to get more drugs. Rivera returned shortly and, at defendant’s direction, gave the officer two vials of crack cocaine in exchange for two $5 bills. After the sale, Rivera headed into a nearby building, and defendant remained on the street. The undercover officer radioed detailed descriptions of defendant and Rivera to his backup team and, within minutes, the pair were arrested. The undercover officer made an immediate drive-by identification. No buy money or additional drugs were recovered from defendant.

In failing to make a timely objection, defendant has failed to preserve for appellate review his claim that the testimony of the arresting officer was bolstered by a reference to the drive-by identification by the undercover officer (CPL 470.05; People v Whalen, 59 NY2d 273). In any event, there is no question regarding identification under the circumstances, given the face-to-face sale, detailed descriptions and drive-by confirmatory identification. Thus, any bolstering of the arresting officer’s testimony was harmless because there is no significant probability that defendant would have been acquitted had it not been for the duplicative testimony (see, People v Johnson, 57 NY2d 969).

As to the sentence imposed, we note that sentencing is a matter committed to the sound discretion of the court (People v Farrar, 52 NY2d 302, 305) and, unless the exercise of that discretion is clearly abused, the sentence imposed by the Trial Justice will not be disturbed on appeal (People v Junco, 43 AD2d 266, 268, affd 35 NY2d 419, cert denied 421 US 951). We perceive no abuse of discretion and note that the sentence imposed is within statutory guidelines applicable to a predicate felon. We are in agreement with the sentiment that "if the statute is capable of producing harsh results, the Court’s role is limited to calling the matter to the Legislature’s attention; it may not assume the legislative role and rewrite the statute to satisfy its own sense of justice (Pajak v Pajak, 56 NY2d 394, 397-398). This is a principle of ancient lineage which this Court has consistently applied in all types of cases (see generally, McKinney’s Cons Laws of NY, Book 1, Statutes § 73, and cases cited)” (People v Dozier, 78 NY2d 242, 254 [Wachtler, Ch. J., dissenting]).