Opinion
July 2, 1991
Appeal from the Supreme Court, Bronx County (Frank Torres, J.).
The arresting officers, while leaving the building which was the subject of an unrelated investigation, observed defendant selling crack. Defendant and the purchaser were immediately apprehended. Fourteen blue-capped vials of crack were recovered from defendant's pocket, and one blue-capped vial was recovered from the other man. At trial, one of the officers testified that he initialled the top of each vial, placed all the vials in a sealed envelope, wrote his name on the flap of the envelope, and forwarded it to the police lab. The police chemist testified that she received the sealed envelope, on whose flap the arresting officer's name was written, extracted blue-capped vials of crack, and that the powder therein tested positive for cocaine. The chemist's lab records, however, did not indicate that the vials had been individually initialled. She also testified that ballpoint pen writing on crack vials does smudge.
Viewing the evidence in a light most favorable to the People (People v Allah, 71 N.Y.2d 830, 831), defendant's guilt was proved beyond a reasonable doubt by overwhelming evidence. Whatever minor inconsistencies existed in the testimony of the police officers did not render their testimony incredible as a matter of law (People v Lozado, 157 A.D.2d 630), and we find no grounds to disturb the jury's findings of credibility on appeal (see, People v Montanez, 41 N.Y.2d 53, 57). Nor was the verdict against the weight of the evidence. (People v Bleakley, 69 N.Y.2d 490. )
Inconsistencies between police officer testimony and a lab report, while reflecting on the weight of the evidence, did not undermine the chain of custody (People v Newman, 129 A.D.2d 742). Similarly, there is no requirement that an officer initial vials, and the failure to do so goes to the weight of the evidence, and not to its admissibility (People v Cobb, 157 A.D.2d 664, lv denied 75 N.Y.2d 917). The testimony at trial provided reasonable assurances of an unbroken chain of custody, and that the vials had not been tampered with (People v Donovan, 141 A.D.2d 835, 836, lv denied 72 N.Y.2d 1044).
Defendant's challenges to the court's instructions were unpreserved as a matter of law, and we decline to review them in the interest of justice.
Concur — Rosenberger, J.P., Ellerin, Wallach, Ross and Smith, JJ.