People v. Colon

Andrias, J. (dissenting).

I dissent and would affirm.

Defendant’s principal argument on appeal is that Sergeant McDonald’s expert testimony about street-level narcotics operations "impermissibly associated appellant with the ongoing organized drug trade, depriving him of his due process right to a fair trial” (emphasis added).

Initially, such claim has not been preserved for appellate review. The sergeant’s direct examination consisted of 18 pages of testimony. Other than referring to his pretrial objections when the prosecution sought to have Sergeant McDonald qualified as an expert, defense counsel’s only objection at trial was to a specific question about what sellers do after a hand-to-hand narcotics sale. This objection was apparently addressed to the form of the question, which called for personal, anecdotal evidence.

Contrary to defendant’s assertions here, his counsel’s pretrial objections were likewise not addressed to expert testimony about sophisticated narcotics operations but to claims that the proffered testimony would be anecdotal, not beyond a jury’s common understanding, and not based on science, tests or studies; that the witness might not in fact qualify as an expert; that there was no showing that the proffered evidence (on how several individuals might conduct a street-level operation) would apply here because defendant was observed alone with no others aiding him; and, that this evidence would invite the jury "to speculate that there was a whole network of people out on this street in this case” (emphasis supplied).

While Sergeant McDonald did make occasional references to larger scale drug operations and organizations, this occurred *24as the prosecutor developed his expertise. As noted above, there was no objection to this testimony. Furthermore, these references were general and unrelated to the defendant and were necessitated by the defense’s pretrial challenge to the sergeant’s expertise. In any event, any prejudice that may have occurred because of references to narcotics organizations in the sergeant’s direct examination was eliminated on cross-examination when he was asked:

"Q. Now let’s get this straight. You don’t know anything about what happened on June 22, at 167th and Sherman, right?
"A. No.
"Q. You weren’t involved in that case at all?
"A. No, I wasn’t.
Q. In fact, Mr. Colon is not part of some long term investigation that you were describing in your direct examination?
"A. No, he is not.” (Emphasis supplied.)

In addition, the court attempted to cure any potential prejudice to defendant by drafting a limiting instruction for the jury. Defendant did not object to the court’s charge and only requested that the instruction be read in the court’s final charge to the jury instead of at the end of Sergeant McDonald’s testimony. Thus, defendant has waived any claim that the court’s instruction did not cure the alleged prejudice from the sergeant’s testimony (see, People v Santiago, 52 NY2d 865, 866).

In actuality, apart from qualifying his expert, the prosecutor’s questioning of Sergeant McDonald regarding his knowledge of street-level narcotics operations was relatively brief and to the point ("brief and limited testimony concerning street sales in general was admissible to explain why the 'buy’ money was not recovered” (People v Gonzalez, 180 AD2d 553, 554, lv denied 79 NY2d 1001).

The majority finds that "the requisite factual fundament for the receipt of the hypothesis proposed by the People’s expert was missing. There was no evidence that the seller in this case acted in concert with anyone to effect the sale with which defendant was charged”. In fact, however, it could be argued that had there been testimony about others acting with defendant on the street (a hawker, a stash man, a banker, etc.), the expert evidence would be improper because it would be unnecessary and would only impermissibly bolster the obvious proof that a jury could interpret without expert testimony. It is where a defendant is arrested shortly after an alleged one-on-one sale *25without drugs or money that expert testimony is warranted. As noted in People v Kelsey (194 AD2d 248), the leading discussion of the issue, however prevalent street-level drug dealing is in our City, the average juror is not familiar with the modus operandi of street-level dealers (supra, at 252).

There is no basis in the facts of Kelsey (or any other reported case) to limit expert evidence of street-level operations to instances where there is evidence of others involved in the sale. For example, in Kelsey, while the defendant was hanging out with other denizens of 100th Street and Third Avenue, he alone left the crowd to sell to the undercover officer one-on-one. Furthermore, as the Court found, the man next to Kelsey when he was arrested, one James Green, who was found in possession of a large quantity of narcotics, had no relationship to Kelsey. It was not the expert testimony about drug operations, but the references to the stranger Mr. Green and the expert’s testimony that in only "fifty percent of the time” was prerecorded buy money recovered from a seller, that warranted reversal there.

Here, as the majority points out, the defense was that since defendant had no drugs or buy money, the "wrong person was arrested”. However, this is the same argument that this Court in Kelsey found appropriate to counter with expert testimony about street-level dealing: "Only by testimony that drug sellers systematically pass off buy money and work in conjunction with others who hold the drugs could the jury place in perspective the absence of any prerecorded buy money or drugs on defendant. And, of course, this evidence was relevant to a contested issue. Defense counsel repeatedly asked Schoberle why the TNT team used prerecorded buy money and if any such money was recovered from defendant. Defense counsel made the point even more explicit in summation, stressing both the absence of drugs or buy money on defendant at the time of arrest” (supra, at 253).

Defendant’s additional claim that the expert testimony bolstered the undercover officer’s testimony is raised for the first time on appeal and is thus unpreserved (see, People v Garcia, 83 NY2d 817, 819).

Finally, defendant contends that he was deprived of a fair trial when the trial court permitted testimony that the arresting officer observed a drug transaction between defendant and an unidentified woman and that the prosecutor erroneously used such evidence to show defendant’s propensity to commit such crimes. Again, defendant’s claim is unpreserved because *26he failed to specify at trial that the admission of uncharged crimes evidence deprived him of a fair trial (see, People v Iannelli, 69 NY2d 684).

In any event, the claim is without merit. It is well settled that although evidence of uncharged criminal conduct or bad acts may not be adduced at trial solely to demonstrate criminal propensity, it is admissible when offered for some relevant purpose, if the probative value outweighs any prejudicial effect (People v Till, 87 NY2d 835, 836). In fact, evidence of uncharged crimes may be relevant to demonstrate intent, motive, knowledge, common scheme or plan, or identity of the defendant (People v Alvino, 71 NY2d 233, 242). In addition, such evidence has also been deemed admissible for the legitimate purpose of clarifying the circumstances surrounding a defendant’s arrest and to complete the narrative of the charged crime (People v Gines, 36 NY2d 932, 933).

At trial, the undercover officer testified that he saw defendant standing on the corner of 167th Street and Sherman Avenue talking to an Hispanic woman. As he got closer, the officer observed defendant hand one glassine to the woman, who then walked away. The officer approached defendant and said "uno” to defendant who, without saying anything, immediately handed one glassine to him in exchange for $10 of prerecorded buy money. At this point, the court instructed the jury that the officer’s testimony of defendant’s prior exchange with the Hispanic woman was only to explain why he said "uno” to defendant and why he expected defendant to understand that he wanted to purchase one glassine of heroin.

Such testimony of defendant’s prior uncharged drug transaction was properly admitted to explain the course of conduct between the officer and defendant. Before trial, the court stated that the prosecutor could use such testimony reasoning that "the use of this other transaction is necessary to explain what is otherwise inexplicable conduct, and for that limited purpose I’m prepared to receive it into evidence”. The court then stated that it would give a limiting instruction to clarify the purpose of the evidence.

The probative value of this testimony regarding defendant’s uncharged drug sale outweighed any prejudicial effect to him and amounted to nothing more than background information to complete a coherent narrative of defendant’s arrest and to avoid jury speculation about the actions of the police (see, People v Crespo, 203 AD2d 182). As the trial court properly held, the testimony was essential to explain the undercover of*27fleer’s conduct in approaching defendant and saying "uno” to him (see, People v Brown, 211 AD2d 405). Moreover, since defendant’s defense was that he was erroneously arrested, the officer’s testimony that defendant had just sold to another customer was properly admitted to counter defendant’s contention that the police seized the wrong man (see, People v Marte, 207 AD2d 314, 316).

Milonas, Rosenberger and Wallach, JJ., concur with Murphy, P. J.; Andrias, J., dissents in a separate opinion.

Judgment, Supreme Court, Bronx County, rendered September 19, 1994, reversed, on the law and in the interest of justice, and the matter remanded for a new trial.