| People v Rasako |
| 2010 NY Slip Op 08362 [78 AD3d 498] |
| November 16, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v CharlesRasako, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Naomi C. Reed of counsel), forrespondent.
Judgment, Supreme Court, New York County (Thomas A. Farber, J.), rendered August 28, 2008,convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, andsentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, toa term of six years, unanimously affirmed.
In this observed sale case, the court properly exercised its discretion in receiving evidence that,minutes before the charged sale, the observing officer saw defendant engage in suspicious behavior withanother individual. This testimony provided necessary background information that completed thenarrative and explained why the officer focused his attention on defendant (see e.g. People v Birch, 69 AD3d 425 [2010],lv denied 14 NY3d 797 [2010]; People v Toppy, 68 AD3d 635 [2009], lv denied 14 NY3d 806[2010]; People v Urena, 306 AD2d 137 [2003], lv denied 100 NY2d 625 [2003]).Furthermore, the nearly contemporaneous transaction carried relatively little suggestion of generalcriminal propensity, and its probative value outweighed any prejudice (see People v Pressley,216 AD2d 202 [1995], lv denied 86 NY2d 800 [1995]).
The court properly declined to give an adverse inference charge with respect to the absence ofsurveillance videotapes. There was no evidence that the video cameras placed in the park where thissale occurred recorded anything relevant to this case, and the evidence suggested otherwise (seePeople v Scott, 309 AD2d 573, 574 [2003], lv denied 2 NY3d 806 [2004]).Concur—Friedman, J.P., Sweeny, Catterson, Renwick and RomÁn, JJ.