People v. Kelsey

194 A.D.2d 248, 606 N.Y.S.2d 621, 1994 N.Y. App. Div. LEXIS 434
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJanuary 18, 1994
StatusPublished
Cited by60 cases

This text of 194 A.D.2d 248 (People v. Kelsey) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Kelsey, 194 A.D.2d 248, 606 N.Y.S.2d 621, 1994 N.Y. App. Div. LEXIS 434 (N.Y. Ct. App. 1994).

Opinion

OPINION OF THE COURT

Sullivan, J. P.

Defendant’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 person”, 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 "a 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 [250]*250was waiting for her. He radioed his field supervisor, Sergeant Clarke, that he had made a "positive buy” and gave a detailed description of the seller, his clothing and his location. After Clarke gave the order to "move in”, three other members of the team, including Detective Kane, drove to the scene, arriving there in approximately two minutes, and saw defendant, who fit Schoberle’s description, standing with another man, later identified as James Green. Two other men stood a "few feet away” in front of the men who were involved in the transaction with Detective Acosta. As Kane jumped from his car, Green dropped a paper bag, which, when retrieved, was found to contain loose "rock” cocaine. A second bag, containing 36 blue-topped vials of crack cocaine, was recovered from Green’s jacket pocket. Defendant was searched at the scene; although $28 was recovered from him, he did not have any of the prerecorded money in his possession. Nor did defendant have any drugs on him. Green, also searched, was not in possession of any of the buy money. Green, defendant, and the two men who had sold drugs to Detective Acosta were arrested and placed near the curb. Two or three minutes later Schoberle and Acosta made drive-by identifications, Schoberle identifying defendant and Acosta identifying the two that sold her drugs.

Defendant produced an alibi witness, who provided little comfort to his cause. An acquaintance 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 charged.

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 as 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 [251]*251the TNT team, including the supervisor, the undercover and the back-up officers and explained that the selection of TNT-targeted areas was based on "complaints from the community * * * the Board of Education * * * [and] churches”.

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 enlighten 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 Kane, 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 recovered 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 [252]*252his guilt or innocence solely upon evidence tending to prove the crime charged and uninfluenced by irrelevant and prejudicial facts and circumstances” (People v Cook, 42 NY2d 204, 208), this Court has made it clear that evidence regarding buy- and-bust procedures is admissible if it "help[s] to provide the jury with an understanding of the officers’ behavior” or is probative with respect to a "contested issue.” (People v Almodovar, 178 AD2d 133, lv denied 79 NY2d 943; People v Ramos, 192 AD2d 324, lv denied 81 NY2d 1078.) As defendant concedes, such testimony enables the jury to understand the evidence and follow the sequence of events in a particular case. It is, of course, axiomatic that the admissibility of testimony, including the scope of direct and redirect examination, is a matter within the discretion of the trial court. (Cf., People v Ocasio,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Marte
2025 NY Slip Op 05776 (Appellate Division of the Supreme Court of New York, 2025)
People v. Jamison
103 A.D.3d 537 (Appellate Division of the Supreme Court of New York, 2013)
People v. Dennis
55 A.D.3d 385 (Appellate Division of the Supreme Court of New York, 2008)
People v. Olivera
45 A.D.3d 154 (Appellate Division of the Supreme Court of New York, 2007)
People v. Ventura
30 A.D.3d 335 (Appellate Division of the Supreme Court of New York, 2006)
People v. Johnson
300 A.D.2d 677 (Appellate Division of the Supreme Court of New York, 2002)
People v. Cooper
293 A.D.2d 359 (Appellate Division of the Supreme Court of New York, 2002)
People v. Torrieate
289 A.D.2d 134 (Appellate Division of the Supreme Court of New York, 2001)
People v. Carrol
289 A.D.2d 4 (Appellate Division of the Supreme Court of New York, 2001)
People v. Lopez
288 A.D.2d 118 (Appellate Division of the Supreme Court of New York, 2001)
People v. Brown
287 A.D.2d 391 (Appellate Division of the Supreme Court of New York, 2001)
People v. Augustus
287 A.D.2d 362 (Appellate Division of the Supreme Court of New York, 2001)
People v. Kennedy
287 A.D.2d 330 (Appellate Division of the Supreme Court of New York, 2001)
People v. Buntley
286 A.D.2d 909 (Appellate Division of the Supreme Court of New York, 2001)
People v. Wright
283 A.D.2d 712 (Appellate Division of the Supreme Court of New York, 2001)
People v. Diaz
283 A.D.2d 170 (Appellate Division of the Supreme Court of New York, 2001)
People v. Pena
282 A.D.2d 410 (Appellate Division of the Supreme Court of New York, 2001)
People v. Singleton
270 A.D.2d 190 (Appellate Division of the Supreme Court of New York, 2000)
People v. Soto
267 A.D.2d 15 (Appellate Division of the Supreme Court of New York, 1999)
People v. Powell
262 A.D.2d 134 (Appellate Division of the Supreme Court of New York, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
194 A.D.2d 248, 606 N.Y.S.2d 621, 1994 N.Y. App. Div. LEXIS 434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kelsey-nyappdiv-1994.