| People v Hooper |
| 2008 NY Slip Op 01425 [48 AD3d 292] |
| February 19, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Robert Hooper, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Avram Solomon Turkel of counsel),for respondent.
Judgment, Supreme Court, New York County (Eduardo Padro, J.), rendered May 17, 2006,convicting defendant, after a jury trial, of criminal sale of a controlled substance in the thirddegree, and sentencing him, as a second felony drug offender whose prior felony conviction wasa violent felony, to a term of seven years, unanimously affirmed.
The verdict was not against the weight of the evidence. There is no basis for disturbing thejury's determinations concerning identification and credibility (see People v Bleakley, 69NY2d 490, 495 [1987]). Defendant was identified by the undercover officer who made the drugpurchase, as well as by a ghost officer who saw the transaction and followed defendant, at adistance, for about five minutes until his apprehension. Even though the police did not recoverany drugs or prerecorded buy money, and defendant was not observed to be acting in concertwith anyone, it is a reasonable inference that defendant divested himself of the prerecorded buymoney in a manner that escaped the ghost officer's notice.
The court properly exercised its discretion in permitting the arresting officer to testify that inhis experience, which encompassed hundreds of buy and bust operations, there were "manytimes" when prerecorded buy money was not recovered. This simple, innocuous statementcontained no statistical information, had nothing to do with drug trafficking in general ormultimember drug operations, and could not have caused any prejudice (see People vTevaha, 204 AD2d 92 [1994], affd 84 NY2d 879 [1994]; compare People vSmith, 2 NY3d 8 [2004]). Moreover, this testimony closely resembled testimony that theSmith court cited, with apparent approval, in its recitation of the overwhelming evidencethat rendered harmless the inadmissible expert testimony about multimember drug sales(id. at 13 [arresting officer testified "that the failure to locate prerecorded buy moneyfollowing a transaction is 'not uncommon . . . . It's often hidden or gotten rid of realfast . . . .' "]).
Defendant did not preserve his additional arguments that the court should have provided alimiting instruction, and that the purported "expert" testimony should not have come from a fact[*2]witness, and we decline to review them in the interest ofjustice. As an alternative holding, we also find them without merit. Concur—Tom, J.P.,Nardelli, Williams and McGuire, JJ.