Opinion
May 11, 1995
Appeal from the Supreme Court, New York County, Juanita Bing Newton, J., Ronald A. Zweibel, J.
Defendant's contention that the jury, both during the prosecutor's opening statement and at trial, was improperly informed that he had engaged in uncharged drug sales and, thus, he was deprived of a fair trial when the court refused to grant him a mistrial is without merit. Defendant was originally charged not only with the sale of drugs to one Pinkney but also with third degree criminal possession, which requires that there be an intent to sell. It is settled that proof of other contemporaneous drug sales may be offered to establish a defendant's intent to sell the substances that he is accused of having possessed (People v Alvino, 71 N.Y.2d 233, 245-247). Moreover, the defense attempted to convince the jury that defendant's apprehension was the product of confusion on the street, and evidence of uncharged crimes may be introduced to show the accused's identity as the person who has been committed for a particular offense (People v Carter, 77 N.Y.2d 95, 107, cert denied 499 U.S. 967). In any event, the Judge advised the jury to disregard any mention of a sale to another named individual, and the jury is presumed to understand and follow curative instructions (People v Berg, 59 N.Y.2d 294, 299-300).
Defendant also maintains that it was reversible error for the court to permit an undercover to testify, as an expert, about street-level drug deals, urging that the transaction herein was a simple observation sale case in which no ambiguities existed to warrant expert testimony. However, the admissibility and relevance of testimony, including that by an expert witness, is a matter for the sound discretion of the trial court (People v Aphaylath, 68 N.Y.2d 945). Contrary to the contention by defendant that New York jurors are so familiar with the mechanics of drug dealing that they do not need an expert to enlighten them as to such a matter as a drug sale, courts have consistently allowed expert testimony as to the intricacies of drug transactions (see, People v Kelsey, 194 A.D.2d 248). When defendant was apprehended he was not in possession of any drugs, and this Court has previously held that testimony concerning the various roles in a typical street-level drug operation is relevant and admissible to explain why a dealer is not carrying drug "stash" when he is arrested (People v Williams, 204 A.D.2d 183, lv granted 84 N.Y.2d 834; People v Applewhite, 202 A.D.2d 250, lv denied 83 N.Y.2d 868).
Finally, defendant protests the closure of the courtroom during the appearance of the undercover officer. The court, however, conducted a hearing pursuant to People v Hinton ( 31 N.Y.2d 71, cert denied 410 U.S. 911), and made a fact finding that closure was required to protect the officer's safety. Nothing in People v Martinez ( 82 N.Y.2d 436), relied upon by defendant, supports his position that the Trial Judge abused his discretion herein since the clear danger posed by an undercover officer's continuing active involvement in street investigations has been consistently recognized as a compelling reason for excluding the public from the courtroom (see, e.g., People v Richards, 157 A.D.2d 753, affd 77 N.Y.2d 969; People v Ayala, 202 A.D.2d 262, lv denied 83 N.Y.2d 908).
Concur — Sullivan, J.P., Rosenberger, Wallach, Kupferman and Asch, JJ.