Opinion
January 9, 1992
Appeal from the Supreme Court, New York County (Rena K. Uviller, J.).
An undercover officer was qualified as an expert, and testified that after he overheard conversations in which defendant arranged for the delivery of a "package" and "photos" in exchange for money, surveillance was established. Surveillance officers observed codefendant, who was not tried with defendant, arrive at defendant's residence carrying a package, leave defendant's residence, go to his own residence, and leave carrying a rectangular package wrapped in brown paper and contained in a plastic bag. This package contained cocaine. The undercover officer testified that "a package" and "photos", considering their context in the conversations in which they were used, were code terms for a cocaine delivery.
The issue of whether there should have been a circumstantial evidence charge is unpreserved because defendant did not request it at trial (CPL 470.05; People v. Alexander, 153 A.D.2d 507, 509, affd 75 N.Y.2d 979), and we decline to reach it. If we were to reach the issue in the interest of justice, we would find it to be without merit. This conviction rested on both direct and circumstantial evidence. The undercover officer's testimony concerning his conclusions concerning defendant's communications was direct evidence of defendant's participation in the conspiracy and indeed control over the operation, and thus established his dominion and control over the cocaine (Penal Law § 220.21). Even if trial counsel had requested a circumstantial evidence charge, it would not have been required (People v. Ruiz, 52 N.Y.2d 929).
By failing to specifically challenge the undercover officer's testimony on the basis that the imparted opinion was not beyond the comprehension of the jury, rendering expert evidence unnecessary, defendant failed to preserve this claim, too (People v. Gonzalez, 55 N.Y.2d 720, 722, cert denied 456 U.S. 1010), and we decline to reach it. If we were to reach the issue in the interest of justice, we would find it to be without merit. Under People v. Cronin ( 60 N.Y.2d 430, 432-433), expert opinion is admissible in the discretion of the trial court if beneficial to the jury; it need not be essential.
We have sanctioned expert testimony explaining the role of participants in narcotics sales (see, People v. Roman, 171 A.D.2d 562, lv denied 77 N.Y.2d 1000), and the uses of narcotics paraphernalia (see, People v. Polanco, 169 A.D.2d 551, lv denied 77 N.Y.2d 965). Expert opinion has also been held to be a valid means of explaining code terms used by narcotics dealers (see, United States v. Carmona, 858 F.2d 66, 69). As an alternative theory of admissibility, this evidence also served to explain to the jury why surveillance was established, and why eavesdropping on defendant was continued (see, People v. Castro, 101 A.D.2d 392, 396, affd 65 N.Y.2d 683).
Defendant never moved pursuant to CPL 440.10 (1) to set aside the judgment on the basis of ineffective assistance of trial counsel, and an adequate record in support of that claim is not presented. (People v. Brown, 45 N.Y.2d 852.) While certain of his contentions may be rejected on the basis of the existing record, namely, counsel's failure to request a circumstantial evidence charge, or to object to a fleeting reference to defendant's conversing in a Colombian dialect, others may raise serious concerns which could only have been addressed in a hearing (People v. Garcia, 137 A.D.2d 402, 406). On the present record, defendant has failed to carry his burden of establishing that he was denied meaningful representation (People v. Baldi, 54 N.Y.2d 137, 146; People v. Satterfield, 66 N.Y.2d 796, 798-799; People v De La Hoz, 131 A.D.2d 154, 158, lv dismissed 70 N.Y.2d 1005), under Federal (Strickland v. Washington, 466 U.S. 668, 694), as well as State (People v. Vilardi, 76 N.Y.2d 67, 74, n 3) constitutional standards.
Concur — Rosenberger, J.P., Wallach, Ross and Smith, JJ.