| People v Butler |
| 2009 NY Slip Op 01416 [59 AD3d 358] |
| February 26, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Kenneth Butler, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Shelley R. Solomon of counsel), forrespondent.
Judgment, Supreme Court, New York County (Eduardo Padro, J.), rendered August 8, 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, to a term of seven years,unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's determinations concerning credibility and identification. Theundercover officer made a reliable identification of defendant, who matched a specific clothingdescription, and the evidence warrants the inference that defendant had an opportunity to divesthimself of the prerecorded buy money between the transaction and his arrest.
The court properly exercised its discretion in admitting the undercover officer's testimonythat he approached defendant to inquire about buying drugs after hearing other persons nearbyengage in an unspecified "narcotic-related conversation." This evidence was not offered for itstruth, but for the legitimate nonhearsay purpose of completing the narrative and explaining whythe police approached defendant (see People v Tosca, 98 NY2d 660 [2002]; People vRivera, 96 NY2d 749 [2001]). The fact that the conversation did not include or refer todefendant did not render it irrelevant for these purposes; on the other hand, the same factminimized any potential for prejudice.
The court properly exercised its discretion in permitting the arresting officer to testify that inhis experience, which encompassed hundreds of buy and bust operations, the inability of thepolice to recover prerecorded buy money from the person arrested in such an operation was "notuncommon." This simple, innocuous statement was essentially a statement of the officer'spersonal experiences, and it could not have caused any prejudice (see People v Hooper, 48 AD3d292 [2008], lv denied 10 NY3d 864 [2008]). Given the limited nature of thistestimony, which did not even directly express an opinion, the court was not obligated to make aformal inquiry into, and ruling upon, the officer's qualifications as an "expert"; in any event, theofficer's [*2]qualifications were evident from his testimonyregarding his experience.
Defendant's arguments concerning the absence of limiting instructions concerning thealleged hearsay and opinion testimony described above, and concerning a portion of theprosecutor's summation are unpreserved and we decline to review them in the interest of justice.As an alternative holding, we find no basis for reversal. Concur—Tom, J.P., Andrias,Nardelli, Buckley and DeGrasse, JJ.