People v Roberto Andrade

People v Andrade 2004 NY Slip Op 02863 [6 AD3d 257] April 20, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 30, 2004

The People of the State of New York, Respondent,
v
Roberto Andrade, Appellant.

—[*1]

Judgment, Supreme Court, Bronx County (John Moore, J.), rendered October 16, 2002, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds (two counts), and criminal possession of a controlled substance in the third degree, and sentencing him to concurrent terms of 2 to 6 years, unanimously affirmed.

In this observation sale case, the court properly admitted expert testimony as to the market value of a glassine envelope of heroin at the relevant time and place, along with the expert's opinion that the amount of money recovered from defendant was consistent with the amount he would have received in return for the total amount of drugs recovered from the two buyers. In addition to being relevant to the charge of possession with intent to sell contained in the indictment, this testimony constituted corroborating evidence that defendant made the two observed sales (see e.g. People v Robinson, 272 AD2d 186 [2000], lv denied 95 NY2d 870 [2000]). The expert testimony did not suggest uncharged sales or invade the province of the jury (see People v Brown, 97 NY2d 500, 505-507 [2002]). The court proposed a limiting instruction, but defendant rejected that proposal and declined the court's offer to suggest an alternative instruction, thereby waiving his present claim that a different instruction should have been provided (People v Gonzalez, 99 NY2d 76, 83 [2002]). In any event, the instruction proposed by the court would have been appropriate. Concur—Buckley, P.J., Nardelli, Andrias, Sullivan and Gonzalez, JJ.