People v Toppy

People v Toppy 2009 NY Slip Op 09542 [68 AD3d 635] December 22, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

The People of the State of New York, Respondent,
v
Cherese Toppy, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (William B. Carney of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Charlotte E. Fishman of counsel), for respondent.

Judgment, Supreme Court, New York County (Eduardo Padro, J.), rendered August 12, 2005, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds, and sentencing her, as a second felony offender, to concurrent terms of 4½ to 9 years, unanimously affirmed.

In this observation sale case, the court properly exercised its discretion in receiving, with suitable limiting instructions, evidence of a contemporaneous uncharged sale to an unapprehended buyer. This sale was relevant to establish the observing officer's ability to make a reliable identification, to complete the narrative of events leading up to the arrest, and to explain why the observing officer targeted defendant and focused on her activity (see e.g. People v Carter, 77 NY2d 95, 107 [1990], cert denied 499 US 967 [1991]; People v Urena, 306 AD2d 137 [2003], lv denied 100 NY2d 625 [2003]; People v Julius, 300 AD2d 167, 168 [2002], lv denied 99 NY2d 655 [2003]; see also People v Matthews, 276 AD2d 385 [2000], lv denied 96 NY2d 736 [2001]). We have repeatedly upheld such use of contemporaneous uncharged sales, which "carr[y] relatively little suggestion of general criminal propensity" (People v Pressley, 216 AD2d 202 [1995], lv denied 86 NY2d 800 [1995]). With regard to the observing officer's brief mention of defendant's quick exchange with an unidentified man prior to the uncharged sale, defendant has not preserved her current complaint, and we decline to review it in the interest of justice. As an alternative holding, we likewise find this testimony relevant and nonprejudicial.

The court properly exercised its discretion in denying defendant's mistrial motions based on two comments by the prosecutor during summation. As to the first remark, the court's curative actions were sufficient, and the second remark constituted fair comment on the evidence and a reasonable inference to be drawn therefrom. Defendant's remaining challenges to the summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 [*2]NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]). Concur—Sweeny, J.P., Catterson, Renwick, Freedman and Abdus-Salaam, JJ.