Opinion
No. KA 04-02856.
February 1, 2008.
Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), rendered September 13, 2004. The judgment convicted defendant, upon a jury verdict, of criminal sale of a controlled substance in the third degree and unlawful possession of marihuana.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (TIMOTHY P. DONAHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY A. GILLIGAN OF COUNSEL), FOR RESPONDENT.
Before: Scudder, P.J., Hurlbutt, Lunn, Green and Gorski, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal sale of a controlled substance in the third degree (Penal Law § 220.39) and unlawful possession of marihuana (§ 221.05). County Court properly permitted the People to present Molineux evidence to rebut defendant's agency defense ( see People v Ortiz, 259 AD2d 979, 980, lv denied 93 NY2d 1024). Contrary to the contention of defendant, he was not entitled to notice of the People's intention to present such evidence or to a pretrial hearing on the admissibility of such evidence ( see People v Torres, 300 AD2d 46, lv denied 99 NY2d 633). Although we agree with defendant that the court erred in admitting in evidence a laboratory report relating to a prior conviction inasmuch as the People failed to establish a proper foundation for the admission of that report ( see Matter of Samuel A., 63 AD2d 585), we conclude that the error is harmless ( see People v Crimmins, 36 NY2d 230, 241-242). Defendant failed to preserve for our review his further contention that the admission of the laboratory report in evidence violated his constitutional right to confront witnesses against him ( see CPL 470.05), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). Finally, the sentence is not unduly harsh or severe.