Opinion
October 29, 1992
Appeal from the Supreme Court, New York County (Paul Bookson, J.).
Defendant was arrested after a police surveillance team observed him make several exchanges of glassine envelopes for cash. On occasion, defendant was observed to retrieve a brown paper bag which was secreted, alternatively, in leaves or in a garbage can within 10 feet of his location. One of the purchasers was arrested in his car moments after a sale, and two glassine envelopes containing heroin were recovered. A backup team then arrested defendant. The brown bag was not recovered, and no drugs were found in defendant's possession. At trial, the People introduced evidence of the prior uncharged sales. Defendant's case is predicated on a theory of misidentification.
Evidence of the uncharged drug sales is relevant to establish identity (People v Terry, 179 A.D.2d 351, lv denied 79 N.Y.2d 1008) and modus operandi (People v Ortiz, 156 A.D.2d 77, 80, lv denied 76 N.Y.2d 793) with respect to the bag (see also, People v Quinones, 166 A.D.2d 330, lv denied 77 N.Y.2d 881). It is also admissible to provide a narrative explanation of why defendant was targeted by the police (People v Hernandez, 139 A.D.2d 472, 477, lv denied 72 N.Y.2d 957) in rebuttal to defendant's theory that the wrong person was arrested (People v Carter, 77 N.Y.2d 95, 107, cert denied ___ US ___, 111 S Ct 1599).
However, in the course of delivering a supplemental instruction to the jury that the charge against defendant is limited to a single transaction, the court stated, in regard to the evidence of other transactions engaged in by defendant, "you may consider it as it characterizes [sic] or of the inferences that you may wish to draw from that activity." As the Court of Appeals observed, "The rule excluding evidence of uncharged crimes is based upon the human tendency more readily `to believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime'" (People v Ventimiglia, 52 N.Y.2d 350, 359, quoting People v Molineux, 168 N.Y. 264, 313), and this instruction, given in response to the jurors' request for clarification regarding the purpose of the evidence of other drug sales, permitted the jurors to draw the inference that defendant has a propensity to sell drugs (People v Alvino, 71 N.Y.2d 233, 241).
Concur — Milonas, J.P., Rosenberger, Ellerin and Rubin, JJ.