Summary
holding that expert's testimony that defendant possessed crack cocaine with “intent to sell the drugs ... invad[ed] the exclusive province of the jury in determining an ultimate issue of fact”
Summary of this case from State v. CainOpinion
February 26, 1996
Appeal from the Supreme Court, Kings County (Vaughan, J.).
Ordered that the judgment is affirmed.
The defendant was observed by a police officer in possession of a paper bag containing 55 vials of crack cocaine. The defendant contends that the People's expert testified to an ultimate issue of fact. Although the narcotics expert at trial improperly testified that the defendant's possession of 55 vials of crack cocaine evidenced an intent to sell the drugs, thereby invading the exclusive province of the jury in determining an ultimate issue of fact, this error was harmless (see, People v. Goodwine, 177 A.D.2d 708, 709). Given that the jury was presented with evidence including the large quantity of vials; that the defendant was observed in possession of the bag containing crack cocaine vials in a stairwell with another person; that a drug seller often works with another person who holds the money; that the defendant did not live on the premises; and that the drugs were packaged in $5 vials, typical for the sale of crack cocaine, we find that such error was harmless in light of the overwhelming evidence of the defendant's guilt (see, People v. Goodwine, supra; People v. Crimmins, 36 N.Y.2d 230, 241).
The sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80, 85-86).
The defendant's remaining contentions are unpreserved for appellate review (see, CPL 470.05) and, in any event, are without merit. Balletta, J.P., O'Brien, Altman and Friedmann, JJ., concur.