People v. Tevaha

204 A.D.2d 92, 611 N.Y.S.2d 179, 1994 N.Y. App. Div. LEXIS 4703

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 5, 1994
• Status: Published

Opinions

—Judgment, Supreme Court, New York County (Franklin Weissberg, J.), rendered March 3, 1992, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and sentencing him, as a second felony offender, to a term of 6 to 12 years, affirmed.

Defendant’s failure to object at trial notwithstanding, a proper foundation was established for the testimony of Officer Scarazzini and Detective Pesce. Despite the fact that they were not formally qualified as expert witnesses, their testimony demonstrated that they had sufficient experience to qualify as expert witnesses on street-level drug dealing (People v Gonzalez, 180 AD2d 553, lv denied 79 NY2d 1001; see, People v Duchowney, 166 AD2d 769, 770-771, citing, inter alia, People v Siu Wah Tse, 91 AD2d 350, 353, lv denied 59 NY2d 679).

The brief and limited background evidence offered by these two witnesses with respect to the narcotics trade and "buy and bust” operations was properly admitted "to explain the absence of prerecorded buy money and contraband from the items seized from the defendant upon his arrest” (People v Ellsworth, 176 AD2d 127, 128, lv denied 79 NY2d 856, citing People v Roman, 171 AD2d 562, lv denied 77 NY2d 1000). Contrary to the view expressed by the dissent, the facts in this case may be distinguished from the circumstances in People v Kelsey (194 AD2d 248), where the prosecution’s repeated, and more extensive use of similar evidence crossed the line between providing the jury with useful background and prejudicially focusing the jury’s attention on the narcotics trade in general (People v Soto, 172 AD2d 355; People v Maldonado, 50 AD2d 556), and where this Court’s decision was also based on the trial court’s error in admitting other prejudicial evidence regarding the unrelated arrest of another defendant at the same time and place (People v Kelsey, supra).

A prosecutor has broad latitude in summation, particularly in responding to the defense counsel’s summation (People v Galloway, 54 NY2d 396). The prosecutor did not improperly vouch for her witnesses. Instead, the summation was a fair response to defense attacks on the credibility and veracity of the People’s witnesses.

Defendant’s sentence was neither harsh nor excessive and we decline to reduce it in the interest of justice. Concur—Ross, Asch, Rubin and Williams, JJ.