Opinion
August 25, 1994
Appeal from the Supreme Court, New York County (Clifford Scott, J.).
Defendant was arrested at about 5:30 P.M. on April 11, 1990 in a "buy and bust" operation conducted on Manhattan's Lower East Side. He was approached by an undercover narcotics officer, who observed four persons standing in line waiting to talk to defendant, positioned on a street corner in front of a school. Defendant was seen to exchange something with each individual, who then quickly walked away. The undercover officer joined the line and heard defendant say such things as "how many" and "hurry up". When the officer reached the front of the line, he asked for "two" and was given two glassine envelopes of heroin marked "Try A Bag", paying $20 in pre-recorded buy money. He then notified the field team by radio that the transaction had been completed and gave a physical description of defendant.
Officer Mark Slender received the transmission, and located defendant as he was leaving the school yard on Suffolk Street. When Officer Slender made eye contact, defendant fled. After a chase and struggle, Officer Slender apprehended defendant, who was then positively identified by the undercover officer. The $20 in buy money, an additional $363 in cash, a Motorola beeper, 23 glassine envelopes marked "Try A Bag" and 18 more envelopes marked "Super Key" were recovered from defendant's person. It was later stipulated that these envelopes contained heroin.
As part of an omnibus pretrial motion, defendant sought a hearing on Wade, Mapp and Dunaway issues. Defense counsel claimed that the seizure of "personal property, narcotics and buy money from the defendant" violated defendant's constitutional rights. Defendant contended, as he did at trial, that he "committed no crime nor did the police have probable cause to search him". Defendant maintains that he was seized while merely "standing on Suffolk and Rivington Streets" waiting for his teenage son to come out of a bodega. Defendant's moving papers assert that he "had not committed any crime nor was he committing a disturbance so as to attract attention to himself".
Defendant's suppression motion was properly denied without a hearing (CPL 710.60). His allegations do not dispute the sufficiency of probable cause for his arrest based on the earlier drug transaction with the undercover officer (see, People v Mendoza, 82 N.Y.2d 415; People v. Dekle, 192 A.D.2d 471, lv denied 81 N.Y.2d 1072). Nor do the motion papers contain the factual particularity required by People v. Mendoza (supra, at 425), in which the Court of Appeals cautioned that a suppression hearing is "`not available merely for the asking'". The bare assertion of innocence and the conclusory allegation that evidence has been illegally recovered are insufficient to warrant a hearing (see, e.g., People v. Coleman, 191 A.D.2d 390, 392, affd 82 N.Y.2d 415; People v. Covington, 144 A.D.2d 238, lv denied 73 N.Y.2d 890).
Defendant's contention that he was prejudiced by the admission of evidence of uncharged crimes is also without merit. Testimony by the undercover officer that defendant was engaged in drug dealing prior to being approached was elicited, in part, by defense counsel on cross-examination and was properly admitted as narrative information to explain why defendant was targeted by police (People v. Brown, 200 A.D.2d 416, lv denied 83 N.Y.2d 849; People v. Rivera, 186 A.D.2d 504, 505). This testimony is also relevant to establish identity in rebuttal to defendant's contention that the police seized the wrong man (see, People v Quinones, 166 A.D.2d 330, lv denied 77 N.Y.2d 881). Although the court did not conduct a full Ventimiglia hearing (People v Ventimiglia, 52 N.Y.2d 350), defense counsel was on notice of the nature of the objectionable testimony, having challenged its admission during the course of opening statements (see also, People v. Battes, 190 A.D.2d 625, 626, lv denied 81 N.Y.2d 1011 [failure to conduct hearing harmless when evidence probative of intent]). Likewise, evidence that a beeper and $363 in cash were recovered from defendant serves to establish intent to sell the narcotics (Penal Law § 220.16; see, e.g., People v. Lopez, 200 A.D.2d 525; People v. Chisolm, 198 A.D.2d 109, lv denied 82 N.Y.2d 923; People v. Martinez, 182 A.D.2d 538, lv denied 80 N.Y.2d 834). Thus, the probative value of this evidence outweighs its potential for undue prejudice (People v. Bradley, 193 A.D.2d 385, 386, lv denied 81 N.Y.2d 1070) by establishing elements of the crimes charged (People v. Alvino, 71 N.Y.2d 233, 241; People v Molineux, 168 N.Y. 264, 293). Defendant's claim that the court gave no curative instructions is unpreserved for appellate review since defendant never asked for limiting or curative instructions nor excepted to their absence (People v. Ayala, 191 A.D.2d 381, lv denied 81 N.Y.2d 1069).
During summations, defense counsel told the jurors that the People's case suffered from a "failure of proof", that his client had just been "hanging out" and that the prosecutor sought to imply guilt circumstantially from the evidence seized from defendant, a beeper and over $300 in cash. Counsel suggested that the inference of defendant's guilt was "based on the very, very, I say overt, classism and subtle racism." In the course of her summation, the prosecutor, over defense objection, stressed that defendant "had the beeper because it helped him in his work of selling heroin." Also over objection, she argued that defendant had been engaged in "selling drugs to the poor people of this city" and in "preying" upon them.
The prosecutor's references to the beeper and the money found on defendant constitute a fair response to defense counsel's portrayal of defendant as an innocent person mistakenly seized by police (People v. Morgan, 66 N.Y.2d 255, 259; People v. Ashwal, 39 N.Y.2d 105, 109) and do not comprise impermissible references to non-admissible evidence (cf., People v. La Fontaine, 39 A.D.2d 734). The prosecutor's remark about preying on the poor might better have been left unsaid, but the reference was not "of such a quantity and repetitive nature that it exceeded all permissible bounds" so as to warrant reversal (People v. Correal, 160 A.D.2d 85, 93). Notably, the objections raised by defense counsel were not accompanied by a motion for a mistrial nor by a request for curative instructions (People v. Medina, 53 N.Y.2d 951, 953), and the cumulative effect of the prosecutor's remarks did not operate to deprive defendant of a fair trial (cf., People v. Butler, 185 A.D.2d 141).
The court's instructions on witness credibility, viewed in the context of the entire charge, adequately conveyed to the jurors that the credibility of the People's witnesses was as much in issue as that of defendant (see, People v. Levia, 6 A.D.2d 961, lv denied 5 N.Y.2d 708). It should be noted that defendant made no request for an interested witness charge with respect to any particular witness. However, under the circumstances, we find the sentence imposed for criminal sale of a controlled substance in the third degree to be excessive and modify accordingly.
Defendant's remaining arguments have been considered and found to be without merit.
Concur — Carro, Rubin and Williams, JJ.
If the only question in this case were one as to whether the sentence was excessive, I would concur in the majority memorandum reducing the sentence from 12 1/2 to 25 years to 6 to 12 years. However, I cannot agree with the majority that the evidence of uncharged drug sales was relevant to the proof of any element of the single sale count charged. And, as I believe that this evidence, which was in the final analysis evidence of criminal propensity, may well have been prejudicial to the defendant, I find it necessary to dissent. I would reverse and remand for a new trial.