Opinion
November 21, 1994
Appeal from the Supreme Court, Westchester County (Rosato, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction of criminal possession of a controlled substance in the seventh degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The People concede that criminal possession of a controlled substance in the seventh degree is a lesser-included offense of criminal possession of a controlled substance in the third degree. We agree and dismiss that count of the indictment as a matter of law (see, People v. McDonald, 199 A.D.2d 539, 540).
In addition, it was error to permit the back-up officer to testify, over objection, that he had identified the defendant after conferring with the undercover detective who had observed the perpetrator, because such testimony constitutes improper bolstering (see, People v. Holt, 67 N.Y.2d 819, 821; see also, People v. Trowbridge, 305 N.Y. 471, 477-478; People v. Faison, 126 A.D.2d 739, 739-740). However, the error was harmless in view of the overwhelming evidence of the defendant's guilt (see, People v. Johnson, 57 N.Y.2d 969, 970-971; see also, People v. Briggs, 156 A.D.2d 574, 574-575).
The sentence imposed was not excessive (see, People v. Durkin, 132 A.D.2d 668, 669; see also, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are either unpreserved for appellate review (see, CPL 470.05) or without merit. Sullivan, J.P., Rosenblatt, Pizzuto and Altman, JJ., concur.