Opinion
April 26, 1993
Appeal from the Supreme Court, Kings County (Rienzi, J.).
Ordered that the judgment is affirmed.
The defendant's conviction stems from his participation in the sale of cocaine to an undercover officer in a so-called "buy and bust" operation in Brooklyn. At trial, two undercover narcotics officers testified that they observed a number of individuals approach the defendant and hand him money. These individuals then walked over to the codefendant, who gave each of them a blue plastic package. Minutes later, the defendant accepted two pre-recorded $10 bills from one of the undercover officers. The defendant then looked at the codefendant and nodded his head, and the codefendant handed the officer a blue plastic package containing cocaine. Immediately after the sale, the defendant was arrested by the undercover officer's backup team, and the pre-recorded money was recovered.
The defendant contends that the admission of evidence indicating that he and his codefendant sold narcotics to other individuals prior to the charged sale deprived him of a fair trial. We disagree. Although evidence of uncharged crimes must be excluded where it is offered solely to establish a defendant's criminal propensity (see, People v Hudy, 73 N.Y.2d 40, 54-55; People v Alvino, 71 N.Y.2d 233, 241), such evidence is admissible where the prior uncharged offense bears on a material issue in the case, and where its probative value outweighs its potentially prejudicial effect (see, People v Ventimiglia, 52 N.Y.2d 350; People v Santarelli, 49 N.Y.2d 241; People v Molineux, 168 N.Y. 264). Moreover, "evidence of prior drug transactions is properly admissible to prove intent, as a matter of necessity, in cases where conduct is at issue which in itself may not be criminal unless accompanied by the requisite unlawful intent" (People v Tabora, 139 A.D.2d 540, 541; see also, People v Alvino, 71 N.Y.2d 233, supra). Contrary to the defendant's contention, we find that the evidence that he and his codefendant engaged in multiple narcotics transactions minutes before commission of the charged sale was properly admitted to establish that he knowingly and intentionally acted in concert with his codefendant to sell cocaine (see, People v Carter, 77 N.Y.2d 95, 107, cert denied 499 U.S. 967; People v Ingram, 71 N.Y.2d 474, 479; People v Arguedas, 181 A.D.2d 595; People v Tabora, supra). The evidence was also relevant because it tended to establish the existence of a common scheme or plan, and because it negated the defendant's defense, which was that he approached the codefendant to purchase cocaine for his own use, and that he innocently agreed, as a favor, to give the codefendant a $20 bill in exchange for the two pre-recorded $10 bills (see, People v Alvino, supra; People v Mascoli, 166 A.D.2d 612). Under these circumstances, the evidence of uncharged crimes allowed the jury to evaluate the prosecutor's evidence and the proffered defense relating to the charged transaction in its proper context (see, People v Mascoli, supra; People v Smith, 163 A.D.2d 432; People v Tabora, supra).
We further find that the undercover officer's testimony regarding the description of the seller, which he communicated to his backup team, did not constitute bolstering in violation of People v Trowbridge ( 305 N.Y. 471; see, People v Byrd, 187 A.D.2d 724; People v Cardona, 173 A.D.2d 364; People v Sarmiento, 168 A.D.2d 328, affd 77 N.Y.2d 976). The undercover officer's testimony, together with the testimony of the arresting officers who received the description, provided a necessary explanation of the events which precipitated the defendant's arrest (see, People v Sarmiento, supra).
We have reviewed the defendant's remaining contention and find it to be without merit. Sullivan, J.P., Balletta, Lawrence and Eiber, JJ., concur.