People v. Mack

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 21, 1978, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. No issue has been presented with respect to the facts. The testimony at trial revealed that the sole identification of appellant at the time of the sale was made by the undercover officer. Testimony was adduced from the officer in charge of the back-up team to the effect that the undercover officer had pointed appellant out to him on other occasions, in the neighborhood, as the seller. Such testimony constituted improper bolstering, which the Court of Appeals has held to be grounds for a new trial (see People v Trowbridge, 305 *754NY 471), as has this court (see People v Napoletano, 58 AD2d 83). Under these circumstances, reversal and a new trial are mandated. Hopkins, J. P., Titone, O’Connor and Margett, JJ., concur.