Opinion
June 8, 2001.
(Appeal from Judgment of Monroe County Court, Maloy, J. — Criminal Sale Controlled Substance, 3rd Degree.)
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, SCUDDER AND BURNS, JJ.
Judgment unanimously affirmed.
Memorandum:
On appeal from a judgment convicting him of criminal sale of a controlled substance in the third degree (Penal Law § 220.39), criminal possession of a controlled substance in the third degree (Penal Law § 220.16) and criminal possession of marihuana in the fifth degree (Penal Law § 221.10), defendant contends that County Court erred in denying his Batson challenge on the ground that the prosecutor's reason for removing the potential juror was pretextual. Because defendant failed to articulate to the court "any reason why he believed that the prosecutor's explanations were pretextual, his present [contention is] unpreserved for [our] review" ( People v. Santiago, 272 A.D.2d 418, lv denied 95 N.Y.2d 907; see, People v. Figueroa, 276 A.D.2d 561, lv denied 96 N.Y.2d 734). Were we to review that contention, we would conclude that it is without merit. "[T]he People offered a sufficiently race-neutral explanation for challenging one black potential juror who had [a] relative who had been convicted of crimes and who would likely be sympathetic toward defendant" ( People v. Dabbs, 192 A.D.2d 932, 934, lv denied 82 N.Y.2d 707; see, People v. Richardson, 193 A.D.2d 969, 972, lv denied 82 N.Y.2d 725). Defense counsel's failure to preserve defendant's contention for our review does not constitute ineffective assistance of counsel. Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation ( see, People v. Baldi, 54 N.Y.2d 137, 147).
Contrary to defendant's contention, the court did not err in denying defendant's motion for a Wade hearing where, as here, the identification was made "by a trained undercover officer who observed defendant during the face-to-face drug transaction knowing defendant would shortly be arrested" ( People v. Wharton, 74 N.Y.2d 921, 922), and the identification was made shortly after the transaction ( see, People v. Starkes, 283 A.D.2d 943 [decided May 2, 2001]). Nor did the court err in denying defendant's request for a Rodriguez hearing ( see, People v. Rodriguez, 79 N.Y.2d 445, 452-453) to test the People's claim that the identification was merely confirmatory. Such a hearing is not required in a classic "buy and bust" undercover operation where the undercover officer identifies the defendant immediately after the transaction ( cf., People v. Smith, 203 A.D.2d 495, lv dismissed 85 N.Y.2d 914).
The court did not abuse its discretion in admitting in evidence the audiotape of the drug transaction. Having reviewed the tape, we conclude that it is not "so inaudible and indistinct that the jury would have to speculate concerning its contents" ( People v. Cleveland, 273 A.D.2d 787, 788, lv denied 95 N.Y.2d 864; see, People v. Rivera, 257 A.D.2d 172, 176, affd 94 N.Y.2d 908). The court's Sandoval ruling did not constitute an abuse of discretion ( see, People v. Walker, 83 N.Y.2d 455, 458-459; see also, People v. Washington, 233 A.D.2d 684, 687-688, lv denied 89 N.Y.2d 1042).
Finally, we conclude that the conviction is supported by legally sufficient evidence and that the verdict is not against the weight of the evidence ( see generally, People v. Bleakley, 69 N.Y.2d 490, 495).