People v. KelseyPeople v. Kelsey
OPINION OF THE COURT
Dеfendant’s conviction arises out of a "buy-and-bust” operation on the upper east side of Manhattan. On April 11, 1990, at approximately 2:30 p.m., Detective Schoberle, a member of a tactical narcotics team (TNT), dressed "like a regular street persоn”, approached a group of men standing by a mailbox on the corner of 100th Street and Third Avenue and asked if "anybody was working.” Defendant, one of the group, asked, "How many you looking for?” When Schoberle replied, "[F]ive”, defendant told him to walk to a fence "а few feet” north on Third Avenue. After walking to the fence, Schoberle turned around and saw defendant approaching. Defendant handed Schoberle five yellow-topped vials in exchange for $15 in prerecorded buy money. The entire transaction lasted three or four minutes.
Meanwhile, Schoberle’s "ghost”, Detective Melinda Acosta, who had followed Schoberle to 100th Street and Third Avenue, watched as he approached the men near the mailbox and saw him approach defendant. Fearing that she was too close to Schoberle and that she might jeopardize the operation, Acosta turned around and walked east towards a housing project. She had walked only about 20 feet when a man approached her and "made an offer.” "Out of habit”, Acosta went along "with the transaction” and purchased three vials from another man, who removed them from a brown paper bag. As a result of her involvement in this transaction Acosta lost sight of Schoberle and did not witness his purchase of narcotics.
After completing her own buy, Acosta walked back to the car which she and Schoberle had parked and where Schoberle
Defendant produced an alibi witness, who provided little comfort to his cause. An acquаintance of some 15 years, she testified that on the day of his arrest she met him at a laundromat on Third Avenue between 100th and 101st Streets and that he left sometime "between 2:00 and 2:30 p.m.” The jury found defendant guilty of criminal sale of a controlled substance in the third degree, as chаrged.
Defendant does not challenge either the sufficiency or the weight of the evidence. He does, however, argue, inter alia, that his right to a fair trial was violated by the repeated use of evidence as to what generally happens in buy-and-bust operations аs well as evidence suggesting drug activity at the scene, of arrest by James Green. In that regard, the prosecutor introduced evidence of the general procedures of a buy-and-bust operation as well as the change in tactics adopted by drug dealers to avoid being apprehended with the incriminating buy money or drugs on their person. For instance, Sergeant Clarke, the People’s first witness, testified that "TNT is a street level narcotics enforcement unit” whose objective is "to arrest street level drug dealers, usually in residential areas.” He described the specific function of each member of
Clarke was permitted to explain that in a buy-and-bust operation undercover officers use prerecorded buy money to purchase narcotics but that since many drug dealers are aware of this, they "exchange the money or pass the money off to someone else.” Similarly, Clarke testified, the dealer’s supply of drugs, the "stash”, is "[n]ot necessarily” on his person, but often hidden nearby. At one point during his testimony, the trial court instructed the jury that it was allowing "background information * * * to enlightеn you as to what happened in this particular case.” The court denied defendant’s mistrial motion, noting that the evidence was relevant because "[defendant] didn’t have buy money on him when he was arrested.”
The next witness, the undercover officer, Detective Schoberle, testified that prior to the time of the instant sale, the police used to "find stash and cash on people.” By the time of the sale, he noted, dealers "were working within groups. One person would deal you the narcotics, another person would take the money. Another person would take the stash. So it was a group of people working together.” Therefore, he indicated, officers making an arrest "wouldn’t recover stash or * * * buy money” as often as they had in the past.
The arresting officer, Detective Kаne, over defense objection, further developed this theme through his testimony that Green, the man next to defendant at the time of his arrest, was holding a bag full of drugs and had more drugs on him. After defense counsel elicited on cross-examination that the vials recoverеd from Green had blue tops, while those sold by defendant to Schoberle had yellow tops, Kane was recalled to testify that there was nothing unusual in the fact that the tops of the vials sold were one color, while the tops of the vials in the stash were of another. Schoberle was also recalled and confirmed Kane’s testimony that "there’s nothing unusual about” the difference in the colors of the vial tops. On recall, Schoberle testified that only "fifty percent of the time” was the prerecorded buy money recovered from the seller; Kane testified that recovery of the buy money occurred "less than fifty percent” of the time.
While "[a] defendant is entitled to have the jury determine
Under such a standard the general background evidence elicited from Sergeant Clarke concerning the normal buy-and-bust operation, the objectives of TNT and the roles of each member was clearly admissible to enable the jurors to place the testimony of Schoberle, Acosta and Kane in context. Other than to complain about the evidence that TNT teams target specific areas based on community complaints, which we do not find prejudicial to defendant, defendant does not specifically challenge this evidence. Rather, he challenges as unduly prejudicial the testimony of Clarke, Schoberle and Kane about the tactics drug dealers use to avoid being apprehended in possession of either the stash or the cash. In partiсular, he complains that this evidence diverted the jurors’ attention away from the single sale at issue, focussing it instead on the narcotics trade in general.
As the Trial Judge correctly realized, however, the challenged testimony as to how drug dealers worked within groups so that TNT teams would not find the drug supply or any buy money on them was relevant, given the absence of either drugs or prerecorded money on defendant at the time of his arrest. That street-level drug dealers had adopted a modus operandi to compete with TNT’s tactics is not common knowledge to the average citizen. This Court has impliedly recognized as much in holding that testimony as to the various roles in a typical drug operation is admissible to explain the absence of the prerecorded buy money on a defendant at arrest. (See, e.g., People v Gonzalez,
While this general background testimony and even the explanation as to the absence of drugs or buy money on defendant at the time of the arrest was proper, the People were allowed too much latitude as to the latter issue. It is one thing to offer an explanation for the absence of buy money or drugs on a defendant at the time of arrest. It is quite another to offer evidence that in the testifying officer’s experience such evidencе is not recovered in 50% of the drug arrests. Once the explanation was offered as to the various roles played by the integrated group connected to the seller, the jury had all the information it needed to account for the absence of drugs or prеrecorded money in defendant’s possession at the time of arrest. The introduction of evidence of the practices drug dealers have used on other occasions may not be used to prove defendant’s conduct on this particular occasion. The statistical evidence had nothing to do with this case and carried with it undue prejudice.
Furthermore, the testimony about Green, who was standing next to defendant at the time of arrest and who was arrested with him, dropping a bag of loose "rock” cocaine аnd carrying a second bag containing 36 vials of crack cocaine was irrelevant and prejudicial. There was no evidence placing Green in the immediate vicinity at the time of the sale. Nor, given the testimony as to how drug dealers operate, was the testimony as to the amount of drugs he possessed material, especially since there was no testimony that he and defendant were acting together. In fact, according to the police officers’ testimony, no buy money was found on Green. Nor was there any evidence that Green supplied defendant with the five yellow-topped vials that defendant sold to Schoberle. In light of the extensive amount of testimony given on current "stash and cash” practices, which would have provided the jury with the
Since we do not find the erroneous admission of the prejudicial matters to have been harmless, a new trial is in order.
Accordingly, the judgment of the Supreme Court, New York County (Stеphen Crane, J.), rendered May 27, 1992, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and sentencing him, as a predicate felony offender, to an indeterminate term of from 5 to 10 years, should be reversed, on the law, and the matter remanded for a new trial.
Carro, Rosenberger, Ross and Asch, JJ., concur.
Judgment, Supreme Court, New York County, rendered May 27, 1992, reversed, on the law, and the matter remanded for a new trial.