| People v Toppy |
| 2009 NY Slip Op 09542 [68 AD3d 635] |
| December 22, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Cherese Toppy, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Charlotte E. Fishman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Eduardo Padro, J.), rendered August 12,2005, convicting defendant, after a jury trial, of criminal sale of a controlled substance in thethird degree and criminal sale of a controlled substance in or near school grounds, andsentencing her, as a second felony offender, to concurrent terms of 4½ to 9 years,unanimously affirmed.
In this observation sale case, the court properly exercised its discretion in receiving, withsuitable limiting instructions, evidence of a contemporaneous uncharged sale to anunapprehended buyer. This sale was relevant to establish the observing officer's ability to make areliable identification, to complete the narrative of events leading up to the arrest, and to explainwhy the observing officer targeted defendant and focused on her activity (see e.g. People vCarter, 77 NY2d 95, 107 [1990], cert denied 499 US 967 [1991]; People vUrena, 306 AD2d 137 [2003], lv denied 100 NY2d 625 [2003]; People vJulius, 300 AD2d 167, 168 [2002], lv denied 99 NY2d 655 [2003]; see alsoPeople v Matthews, 276 AD2d 385 [2000], lv denied 96 NY2d 736 [2001]). Wehave repeatedly upheld such use of contemporaneous uncharged sales, which "carr[y] relativelylittle suggestion of general criminal propensity" (People v Pressley, 216 AD2d 202[1995], lv denied 86 NY2d 800 [1995]). With regard to the observing officer's briefmention of defendant's quick exchange with an unidentified man prior to the uncharged sale,defendant has not preserved her current complaint, and we decline to review it in the interest ofjustice. As an alternative holding, we likewise find this testimony relevant and nonprejudicial.
The court properly exercised its discretion in denying defendant's mistrial motions based ontwo comments by the prosecutor during summation. As to the first remark, the court's curativeactions were sufficient, and the second remark constituted fair comment on the evidence and areasonable inference to be drawn therefrom. Defendant's remaining challenges to the summationare unpreserved and we decline to review them in the interest of justice. As an alternativeholding, we find no basis for reversal (see People v Overlee, 236 AD2d 133 [1997],lv denied 91 [*2]NY2d 976 [1998]; People vD'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]).Concur—Sweeny, J.P., Catterson, Renwick, Freedman and Abdus-Salaam, JJ.