PEOPLE v. McALLISTER (1998)

Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered April 1, 1996, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to an indeterminate term of 5 to 10 years imprisonment, unanimously affirmed.

 Background testimony by the arresting officer regarding the mechanics of street level drug sales and the tactics of drug dealers was properly admitted (People v. Kelsey, 194 A.D.2d 248, 252, 606 N.Y.S.2d 621).   Contrary to defendant's argument, the record reveals that the testimony was brief and limited and did not contain improper statistical evidence (see, People v. Vargas, 213 A.D.2d 258, 624 N.Y.S.2d 11, lv. denied 86 N.Y.2d 742, 631 N.Y.S.2d 623, 655 N.E.2d 720).   Unlike the extensive testimony found objectionable in People v. Colon, 238 A.D.2d 18, 20, 667 N.Y.S.2d 692, appeal dismissed, 92 N.Y.2d 909, 680 N.Y.S.2d 50, 702 N.E.2d 835, the testimony here provided no basis for the jury to speculate “that defendant was a member of a well-orchestrated conspiracy to traffic in narcotics.”  (Id. at 20, 667 N.Y.S.2d 692).

Defendant failed to preserve his current claim that it was error to permit testimony about an uncharged drug sale without giving limiting instructions, and we decline to review it in the interest of justice.

 Defendant failed to preserve his challenge to use of the language “with sufficient certainty to preclude a reasonable possibility of a mistake ․” in its identification charge, and we decline to review it in the interest of justice.   Were we to review this claim, we would find that while this language constitutes error, the error was harmless because the charge as a whole conveyed the proper legal standard (People v. Vasquez, 181 A.D.2d 459, 581 N.Y.S.2d 180, lv. denied 79 N.Y.2d 1055, 584 N.Y.S.2d 1023, 596 N.E.2d 421), in that the court repeatedly charged the standard of proof beyond a reasonable doubt with respect to both the People's burden of proof in general and with respect to the identification evidence in particular.

 The court's response to a jury note asking if the testimony of one witness was sufficient to convict was correct in context.

 Defendant's challenges to the prosecutor's summation are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would find that the challenged portions of the summation were responsive to defendant's summation (see, People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724), which contained attacks on both the credibility and accuracy of the police testimony.

MEMORANDUM DECISION.