PEOPLE v. SMALLS

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Gilbert SMALLS, appellant.

-- November 29, 1999

WILLIAM C. THOMPSON, J.P., DANIEL W. JOY, GABRIEL M. KRAUSMAN and GLORIA GOLDSTEIN, JJ. M. Sue Wycoff, New York, N.Y. (Denise Fabiano of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Joyce A. Smith of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Fisher, J.), rendered July 30, 1997, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the Supreme Court properly admitted limited expert testimony concerning the general practices of drug dealers.   The testimony was admitted to explain to the jury why the defendant, who was observed to have been working with another individual who was not apprehended, did not have the “buy money” or controlled substance on his person when he was arrested shortly after he sold crack cocaine to an undercover police officer (see, People v. Graves, 85 N.Y.2d 1024, 630 N.Y.S.2d 972, 654 N.E.2d 1220;  People v. Lacey, 245 A.D.2d 145, 666 N.Y.S.2d 157;  People v. Santiago, 222 A.D.2d 461, 635 N.Y.S.2d 525;  People v. Brown, 218 A.D.2d 813, 630 N.Y.S.2d 797;  People v. Garcia, 196 A.D.2d 433, 601 N.Y.S.2d 482, affd. 83 N.Y.2d 817, 611 N.Y.S.2d 490, 633 N.E.2d 1094;  People v. Tucker, 102 A.D.2d 535, 537, 477 N.Y.S.2d 386;  cf., People v. Bethea, 261 A.D.2d 629, 691 N.Y.S.2d 79 ).

The defendant's sentence is not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are either unpreserved for appellate review or do not require reversal.

MEMORANDUM BY THE COURT.

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