People v. Blue

—Appeal by the defendant from a judgment of the Supreme Court, Westchester County (West, J.), rendered September 6, 2000, convicting him of criminal sale of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the third degree (two counts), criminal sale of a controlled substance in the fifth degree, and criminal possession of a controlled substance in the fifth degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. Contrary to the defendant’s contention, the trial court providently exercised its discretion in denying his motion for a mistrial after a police officer testified on cross-examination that he had obtained a photograph of the defendant prior to his arrest. The defendant’s claim that this testimony amounted to improper bolstering of the undercover officer’s identification of the defendant in violation of People v Trowbridge (305 NY 471), is unpreserved for appellate review (see CPL 470.05 [2]; People v Anderson, 260 AD2d 387; People v Higgins, 216 AD2d 487). In any event, the claim is without merit, as there was no testimony by the officer that a witness used the photograph to identify the defendant on a prior occasion (cf. People v Trowbridge, supra; People v Holt, 67 NY2d 819). [513] The defendant’s claim that the court improperly denied his request for an agency defense charge is also unpreserved for appellate review (see CPL 470.05 [2]). In any event, this claim is also without merit, as no reasonable view of the evidence supported the theory that the defendant was acting solely on behalf of the undercover officer (see People v Herring, 83 NY2d 780). The defendant’s remaining contentions are without merit. Santucci, J.P., Friedmann, H. Miller and Schmidt, JJ., concur.