Opinion
7719 Ind. 5917N/12
11-27-2018
The PEOPLE of the State of New York, Respondent, v. Carlos RUIZ, Defendant–Appellant.
Christina A. Swarns, Office of the Appellate Defender, New York (Stephen R. Strother of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Stephen Kress of counsel), for respondent.
Christina A. Swarns, Office of the Appellate Defender, New York (Stephen R. Strother of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Stephen Kress of counsel), for respondent.
Renwick, J.P., Tom, Webber, Kahn, Moulton, JJ.
Judgment, Supreme Court, New York County (Arlene D. Goldberg, J.), rendered October 23, 2013, as amended October 30, 2013, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the first degree (two counts), criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree, and sentencing him to an aggregate term of eight years, unanimously affirmed.
The court providently exercised its discretion in permitting an expert to explain coded language in recorded conversations between defendant and a confidential informant. Defendant argues that because the informant testified and could have been asked to define the code words, the expert testimony should have been excluded as unnecessary. However, it was permissible for the People to employ expert testimony to establish the coded language's "fixed meaning ... within the narcotics world" ( People v. Inoa , 25 N.Y.3d 466, 474, 13 N.Y.S.3d 329, 34 N.E.3d 839 [2015] [internal quotation marks omitted] ), instead of merely relying on what the informant claimed these words to mean. Moreover, while a fact witness may "serve a dual role" by providing an explanation that might otherwise be given by an expert, "it may be preferable for testimony of this nature to come from a source other than a fact witness" ( People v. Robinson , 129 A.D.3d 550, 551, 13 N.Y.S.3d 348 [1st Dept. 2015], lv denied 26 N.Y.3d 1010, 20 N.Y.S.3d 551, 42 N.E.3d 221 [2015] ; see also People v. Brown , 97 N.Y.2d 500, 505, 743 N.Y.S.2d 374, 769 N.E.2d 1266 [2002] ).
Defendant did not preserve his claim that the court's ruling on expert testimony deprived him of his right to cross-examine the informant, and we decline to review it in the interest of justice. As an alternative holding, we find it meritless. Defendant was free to ask the informant about the recorded conversations, and, to the extent the order of testimony allegedly presented a problem, we note that defendant never sought to recall the informant after the conversations went into evidence.
The court properly admitted testimony regarding defendant's uncharged attempt to sell heroin to the informant before the charged sales. This testimony completed the narrative of the events leading to the three charged sales and provided relevant background information on the developing relationship between defendant and the informant (see generally People v. Till , 87 N.Y.2d 835, 837, 637 N.Y.S.2d 681, 661 N.E.2d 153 [1995] ). Additionally, this testimony was clearly probative of the charged crime of possession with intent to sell, and "the People were not required to rest on the inferences flowing from the charged sale" ( People v. Mendoza , 245 A.D.2d 177, 177, 665 N.Y.S.2d 896 [1997], lv denied 91 N.Y.2d 975, 672 N.Y.S.2d 854, 695 N.E.2d 723 [1998] ).
The People sufficiently demonstrated a good faith basis for their cross-examination of defendant's character witnesses about the police closure of a nightclub in which he was a part owner (see People v. Alamo , 23 N.Y.2d 630, 633–635, 298 N.Y.S.2d 681, 246 N.E.2d 496 [1969], cert denied 396 U.S. 879, 90 S.Ct. 156, 24 L.Ed.2d 137 [1969] ).