Lead Opinion
OPINION OF THE COURT
In this appeal we are asked to determine whether the trial court abused its discretion in allowing the introduction of expert testimony by a police officer in a criminal trial regarding the general operating methods and terminology used in street-level narcotics transactions. Under the facts and circumstances presented, we hold that the trial court did not abuse its discretion.
An undercover narcotics police officer working in Bronx County approached a group of approximately five or six men congregating in front of a grocery store and, in an attempt to locate a crack cocaine seller, asked them who was “working the rock.” Commenting on the officer’s disheveled appearance, the group derided the officer as a “crack head” and told him to “get out of here.” Another man then exited the grocery storе and
The officer walked toward defendant and asked if she was selling crack. Defendant began quizzing the officer about whether he had ever before bought drugs in the area. After the officer answered her questions, defendant acknowledged “okay, I got nicks, come on,”
After completing the transaction, the officer radioed his back-up team that he made a “positive buy” and described defendant as an African-American female dressed in a bright orange shirt with a blue baseball cap. Another officer arrived at the scene minutes later and discovered defendant, who matched the description. About five minutes after the drug purchase, the undercover officer made a drive-by confirmatоry identification of defendant as the seller. Defendant was placed under arrest and searched; however, no prerecorded buy money or drugs were recovered from her person. Because the site of the transaction was within 1,000 feet of two schools, defendant was charged in an indictment with, among other counts, criminal sale of a controlled substance in or near school grounds (Penal Law § 220.44 [2]).
In his opening remarks to the jury, defense counsel suggested that because no drugs or marked money were found on defendant, her arrest was a “mistake” by the police. In response to this misidentification defense, and after presenting
Under direct examination by the prosecutor, the sergeant stated that he was not present when defendant made the sale and was arrested. In describing street-level narcotics transactions, he referred to the different roles and functions performed by persons commonly involved in street drug sales and how these individuals work together. A “pitcher” was described as the person who physically hands a buyer the drugs; a “money man” handles and protects the money; a “stash man” is responsible for safeguarding and handling the supply of drugs; a “lookout” watches for police and other threats; a “steerer” directs buyers to particular sellers based on what drug a potential buyer is seeking; and a “manager” oversees all these persons. The sergeant also defined certain terminology used by drug sale participants such as “are you working,” “stash” and “nicks.”
Explaining why buy money and additional drugs are not always recovered by the police in street-level narcotics arrests, the sergeant testified that the members of a narcotics street operation will try to “save the money by moving it, secreting it somewhere else, getting it off the street before [the police] get there * * * so they do everything they can to keep the money from not staying too long in the street or the drugs from staying too long in the street where it can be seized.” During cross-examination, the witness conceded that one of the reasons why a person arrested might not be in possession of drugs or prere
Ultimately, defendant was convicted of criminal sale of a controlled substance in or near school grounds and sentenced to a term of 2 to 6 years in prison. The Appellate Division affirmed the conviction. A Judge of this Court granted defendant leave to appeal and we now affirm.
In People v Lee (
Here, defendant’s primary defense was misidentification. As the basis of that claim, defendant relied on the fact that no prerecorded buy money or drugs were recovered. By presenting testimony regarding the general characteristics and operating methods of street-level drug transactions, the prosecution offered one plausible explanation as to why a person might not possess money or drugs shortly after selling narcotics to an undercover officer; defendant offered another.
Although the average juror may be familiar with the reality that drugs are sold on neighborhood streets, it cannot be said that the average juror is aware of the specialized terminology used in the course of narcotics street sales or the intricacies of how drugs and money are shuttled about in an effort to prevent their discovery and seizure by the police (cf. Lee,
When a trial court finds that expert testimony is appropriate, it is incumbent on the judge to determine the scope and extent of the testimony to be offered in light of the evidence before the jury. Here, despite a general objection to the People’s offer of expert testimony, defendant did not object to the limiting instruction, nor did she seek to limit the scope of the sergeant’s testimony in any way. As to the latter, the court nevertheless properly precluded the sergeant from opining that defendant sold drugs to the undercover officer or even that defendant’s specific actions or behavior were consistent with participation in a street drug sale (cf. United States v Boissoneault, 926 F2d 230, 233 [2d Cir 1991]).
Based on our concern that expert testimony be admitted only for a permissible purpose, we hold that this type of testimony must be paired with appropriate limiting instructions. If and when the trial court allows such testimony, it should inform the jury that it is free to reject it and that the testimony being admitted should in no manner be taken as proof that the defendant was engaged in the sale of narcotics. These crucial instructions should be reemphasized in thе concluding charge to the jury.
We caution that such expert testimony is not necessarily proper in every drug sale case where a defendant asserts a misidentification defense. Indeed it would be perverse if the very absence of drugs or marked money on the accused served as an automatic basis to introduce expert testimony addressing the general characteristics of street drug transactions. But in this case we disagree with the dissent’s conclusion that there was an inadequate factual basis to allow expert testimony on the nature of street-level narcotics transactions. Specifically, the undercover officer detailed the sequence of events and the interactions of the various individuals he encountered before, during and after the cocaine sale. He testified that after he asked the group of men standing by the grocery store who was “working the rock,” a man exited the store, called him over and pointed defendant out as someone who was “working.” The offi
We next turn to defendant’s Batson contention (see Batson v Kentucky,
“There are no fixed rules for determining what evidence will * * * establish a prima facie case of discrimination” (People v Bolling,
Defendant was explicitly invited by the trial court to articulate any facts and circumstances that would support a prima facie showing of discrimination. Instead of making “a record comparing Caucasians accepted with similarly situated African-Americans challenged, or by establishing objective facts indicating that the рrosecutor has challenged members of a particular racial group who might be expected to favor the prosecution because of their backgrounds” (Bolling,
Accordingly, the order of the Appellate Division should be affirmed.
Notes
Trial testimony rеvealed that a “nick,” or “nickel bag,” is a quantity of drugs sold for $5.
Concurrence Opinion
(concurring). Let there be no doubt: This Court stands as one in its recognition of the prized right of Americans to serve on juries, in its denunciation of invidious discrimination in jury selection and in its commitment to apply the law to assure that objective.
The law, moreover, is clear — well known to Trial Judges and in particular, as the record establishes in this case, well known to the Trial Judge here. To establish a prima facie case of a Batson violation, a defendant must show that the exercise of
I agree with Judge Graffeo and my Colleagues in the majority that defendant has not satisfied the test. When defendant first raised a Batson challenge, the trial court explicitly invited defense counsel to make the necessary record supporting a finding that the prosecutor was using peremptory challenges to exclude potential jurors because of their race. The Trial Judge pointedly asked defense counsel for “facts and other relevant circumstances to create an inference of exclusion of a cognizable group.” That would have shifted the burden to the People to provide race-neutral reasons for its strikes. Defense counsel, however, did not make that showing, arguing instead that challenged jurors had attended college, or had (or lacked) prior jury service. Attendance at college, or prior jury service, does not satisfy the test for a prima facie showing of purposeful discrimination. Many college graduates and former jurors are appropriately challenged. As the Trial Judge made clear, counsel simply had to indicate that accepted jurors had qualities similar to challenged jurors, thereby indicating that race may have had a role, but did not do so.
Experience is indeed a great teacher. My own years on this extraordinary Court, dealing with countless Batson challenges, have brought me far closer to the perception of Justice Thur-good Marshall, that the “inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should ideally lead the Court to ban them entirely from the criminal justice system” (Batson v Kentucky,
In this State, moreover, we hаve both an exceedingly, perhaps uniquely, high number of peremptory challenges, and a requirement that all peremptories be exhausted in order to preserve a claim of error. The opportunity for mischief — let alone the huge, expensive waste of juror time — therefore abounds. My nearly 16-year experience with Batson persuades me that, if peremptories are not entirely eliminated (as many have urged), they should be very significantly reduced.
Dissenting Opinion
(dissenting). Because I believe that the admission of expert testimony was unwarranted, prejudicial and unfair to
Defendant was found guilty, after a jury trial, of the criminal sale of a controlled substance in or near school grounds in violation of Penal Law § 220.44 (2). The prosecution introduced evidence that the defendant, when approached by an undercover police officer, asked the officer what he wanted, and he answered four bags. The defendant allegedly reached into the waistband of her sweat pants, took out four bags and told him that she was keeping one for herself. The officer gave her $20 for the bags. Prior to the officer obtaining the crack cocaine, he had been ridiculed when he approached several men on a corner and asked them where he could obtain drugs. The officer was in a torn and dirty outfit and some of the men stated that he was a crackhead or a cop. A male allegedly pointed out the defendant and told the undercover officer that he could obtain drugs from her.
The defense in thе case was mistaken identification. The defendant testified that she never sold crack cocaine. She stated that she had been with several girlfriends and that she went into a store to get change to use a public telephone. When she returned to the public telephone, she was arrested. No drugs or marked money were found on her. She had no prior criminal record.
Expert Testimony
Expert testimony is properly admitted to assist lay persons to understand matters that are not ordinarily within their understanding. Here, whatever the articulated reason for the introduction of the evidence, it was prejudicial and tipped the scale against the defendant. It should be remembered that defendant was not accused of a drug conspiracy or of being part of a drug organization. Yet, the effect of the admission of this evidence was to do just that — tie the defendant, without evidencе, to a drug organization. No other person allegedly associated with defendant in the drug transaction was arrested.
In the expert testimony, a police officer described an organization selling drugs. He stated that the “pitcher” is a person who actually hands out the drugs, the “money man” keeps and protects the money, the “stash man” protects the narcotics, the
There was no necessity for this expert testimony. In effect, all the expert testimony did was to suggest to the jury, again without proof, how defendant got rid of the marked money, the retained packet of cocaine she refused to give to the officer and any other drugs in her sweat suit. In admitting the expert testimony, the Trial Judge stated that he would give “a limiting instruction to the jury as to the purpose of the testimony and that the testimony is not being offered by anyone who was present who can say that this is what happened but it’s being offered to propose as a contention of the People an explanation as to why there’s no buy money recovered or stash.” This, in my view, reduced the People’s burden in the case. If the People contend that defendant was acting with someone else, they ought to prove it, not speculate upon it.
During summation, the prosecutor implied that the defendant was part of a drug organization. His words were as follows:
“But you now know, ladies and gentlemen, after hearing the testimony of both Detective Farro and the additional testimony of Sergeant Gаry McDonald [the expert] * * *, there was about a four minute period that went by where nobody saw what the defendant was doing, that nobody saw where she went, that nobody saw who she was talking to, nobody saw whether she went into the grocery store.
‘You heard from Sergeant McDonald, he explained to you the nature of these types of operations, the nature of the street level drug trade.
“He explained to you what can happen to the prerecorded buy money, to additional drugs.
“Is that evidence in this case? For the substance of this case, of course not.
“Does it raise plausible reasons as to what may have happened to the prerecorded buy money? Of course it does, of course.”
“He wasn’t testifying based on actual observation.
[He] wasn’t testifying as to what he actually observed or what actually occurred but he was testifying in an area that would otherwise be not known to the jury.
“It does concern a fact in issue and he was offering an explanation with regard to buy money and additional narcotics and this was the limited purpose for his testimony.”
Thus, in this case, the introduction of expert testimony was prejudicial, first, because it nullified the presumption of innocence by replacing it with a presumption of guilt in which the jury was given information on how defendant got rid of marked money and drugs. Moreover, the introduction of the expert testimony shifted the burden of proof from the prosecution to the defendant, requiring her to explain why the expert’s statements did not apply to her and leaving the jury to conclude that she had no explanation.
Expert testimony, similar to that admitted here, is admissible in some drug cases to explain to the jury some aspect of the case. For example, the standard in New Jersey for allowing such evidence is rule 702 of the New Jersey Rules of Evidence, which, in pertinent part, is identical to rule 702 of the Federal Rules of Evidence, and reads as follows: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” First, the New Jersey rule requires that the testimony concern a matter which is beyond the ken of the average juror, the subject must be such that the expert’s testimony may be considered reliable and the witness must have sufficient expertise to testify concerning the subject (State v Berry, 140 NJ 280, 289-290,
Second, the facts of the case must lend themselves to expert testimony. Thus, in State v Cannon, decided with State v Berry, the evidence was that defendant Cannon gave drugs to a person
Cases in the District of Columbia have permitted expert testimony under similar factual circumstances. In Thompson v United States (
In United States v Brown (776 F2d 397, 400 [2d Cir 1985], cert denied
Thus, expert testimony of this kind should be limited to cases where there is sufficient incriminating evidence of more than one person being involved in a drug transaction or sufficient incriminating evidence of a drug organization. Here, the evidence is insufficient. Defendant had no conversation or interaction with the man exiting the store. That she joined the group of men in bantering with the undercover officer is not enough.
In addition, the expert was allowed to testify to matters that were not beyond the understanding of the average juror. It is true that average jurors may be unfamiliar with the special
This case is distinguishable from People v Taylor (
Racial Discrimination
It is also clear that the defendant made out a prima facie case of racial discrimination which required the prosecutor to give racially neutral reasons for peremptorily excluding the jurors. The exclusion of African Americans from juries has long been a problem in American courts. Few problems have been as great a threat to the fairness of the American jury system as the exclusion of African Americans on a racially discriminatory basis (Strauder v West Virginia,
“Jury service, by contrast, is a civil right established by Constitution and statute. First, jury service is a ‘privilege [] of citizenship’ secured to the citizens of this State by article I, § 1 of the State Constitution. Service on the jury has long been recognized to be both a privilege and duty of citizenship * * *. Indeed, it is because jury service is a means of participation in government that, in the words of Mr. Justice Black, ‘[i]t is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community. For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it but is at war with our basic concept of a democratic society and a representative government’ (Smith v Texas,311 US 128 , 130)” (75 NY2d at 651-652 [citations omitted]).
The evidence was sufficient to require some explanation from the prosecutor. In the first round of jury selection, 15 jurors were subject to peremptory challenges. The record indicates that 9 of the 15 were African American. Of this number, eight were challenged, six by the prosecutor and two by the defense. Of the six, five were African Americans. Seven were seated as jurors. The prosecutor thus used 83% of his challenges against African Americans who constituted 60% of the initial jury venire. These numbers alone are sufficient to raise a рrima facie case of jury discrimination requiring some explanation from the prosecutor.
In the second round, 6 of the 15 jurors were African American. After questioning of the second round of jurors was completed, the prosecutor peremptorily struck two African American jurors of the five jurors being considered. At that point, the prosecutor had made eight challenges, seven of which (87%) were against African Americans. The defense attorney then challenged the prosecutor’s striking of African Americans from the jury. While recognizing that a challenge could be made to the striking of even a single juror, the trial court
While thе numbers alone established a prima facie case, the defense attorney presented additional reasons why the striking of African Americans could not be upheld. For example, as to the first prospective juror, the defense counsel stated that the juror had no prior jury experience, had no prior relations with the police, had two years of college and gave no answers that would call into question her qualifications to serve on the jury. Prospective juror number four had a Bachelor of Arts degree in psychology and gave no indication that he could not be fair. Another challenged prospective juror was a single woman with two years of college who helped her mother and brother at home and had no prior jury experience. A fourth prospective juror had worked at the Offtrack Betting Corporation for 30 years, had served on many juries and was not asked a single question by the prosecutor.
Both Batson and Kern require that a defense attorney or prosecutor seeking to challenge the peremptory jury strikes by the other must first establish a prima facie case of jury discrimination “by showing that the prosecution [or defense attorney] exercised its peremptory challenges to remove one or more members of a cognizable racial group from the venire and that there exist facts and other relevant circumstances sufficient to raise an inference that the prosecution used its peremptory challenges to exclude potential jurors because of their race” (People v Childress,
A prima facie case may be established by statistical evidence alone, by a pattern of strikes, by questions and statements made by the. prosecution during voir dire, by comparing rejected African Americans to similarly situated Caucasians and by identifying excluded African Americans who, because of their background or experience, could be expected to favor the prosecution (see Batson v Kentucky,
In People v Bolling (
In People v Jenkins (
The ruling by the Trial Judge that he did not believe a pattern had been shown that would require a prosecutor to respond with race neutral reasons was also in error. It is inconsequential that four African Americans had been chosen
The differences between the majority and the dissent are clear. First, the majority contends that a prima facie case was not established. When the defense attorney made his challenge to the actions of the prosecutor, the record more than adequately established a prima facie case. It showed the number of African Americans among the first 30 prospective jurors and the prosecutor’s action in striking African Americans. In People v Bolling, this Court stated that a challenge on a racial basis did not have to wait until the end of jury selection but could, and should, be raised at any point during the process.
In People v Kern, the case in which this Court applied Bat-son to peremptory challenges by the defense, this Court upheld thе action of the trial court in requiring race neutral reasons for peremptory strikes by the defendant in the midst of jury selection and without a requirement that the race of all prospective jurors be ascertained (
In People v Bennett (
In People v Vega (
Moreover, a defendant is not obligated to include the race of all jurors in the entire panel from which jurors are to be selected before an adequate assessment of discriminatory practices can be made, even when a defendant is relying heavily or primarily upon the exclusion of a disproportionate number of persons of a particular ethnic group. Nor has this Court stated that there must be a comparison of the characteristics of African American jurors and Caucasians before an adequate assessment of a prima facie case can be made.
Second, the majority states that more than statistical evidence was needed here to make out a prima facie case. In several cases, this Court has stated that a disproportionate number of challenges against African Americans may be sufficient to raise an inference of jury discrimination (People v Childress,
Third, as we enunciated in Kern, jury service is a civil right that only a court can protect at the trial stage. Of course, a defendant may still raise the issue of jury service as a civil right on appeal. Considering that we are dealing with the right of African Americans, as well as people of аll races, to serve on juries, a constitutional civil right, establishing a prima facie showing of discrimination should not require more than what defendant established in this case. To require more is unwarranted, particularly when viewed in proportion to the minimal
“Surely, jurors dismissed because of their face will leave the courtroom with a lasting impression of exclusion from jury participation and perhaps of isolation from mainstream society generally * * *. No argument based on percentages of the population would remove from these excluded prospective jurors the sense of exclusion resulting from being assumed to be incompetent to sit on a jury solely because of their race” (75 NY2d at 558 ).
Since jury service is a civil right, courts have an obligation to see that persons are not excluded from juries on a racial basis.
Accordingly, both because the expert testimony rendered the trial unfair and because the prosecutor should have been required to give race neutral reasons for his exclusion of African Americans from the jury, I dissent.
Chief Judge Kaye and Judges Levine, Ciparick, Wesley and Rosenblatt concur with Judge Graffeo; Chief Judge Kaye concurs in a separate concurring opinion in which Judges Wesley and Rosenblatt concur; Judge Smith dissents and votes to reverse in another opinion.
Order affirmed.
Specifically, this Court stated: “Defendant — pointing to the fact that the prosecutor peremptorily challenged four of the six African-American members of the venire — contends that he has made a prima facie showing that the prosecution exercised its peremptory challenges in a racially discriminatory manner, and that the burden therefore shifted to the prosecution to come forward with racially neutral reasons for the strikes (see, Batson v Kentucky,