PEOPLE v. LOPEZ (2001)

Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered March 6, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds, criminal sale of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the third degree, and upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to four concurrent terms of 7 1/212 to 15 years concurrent with a term of 4 1/212 to 9 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the conviction of one count of criminal possession of a controlled substance in the third degree and dismissing that count, and otherwise affirmed.

 The court properly exercised its discretion in admitting expert testimony on street-level narcotics transactions.   The expert testimony was not based on speculation and was relevant to explain defendant's role in the transaction and the absence of drugs or pre-recorded buy money on defendant's person when arrested (see, People v. Kelsey, 194 A.D.2d 248, 606 N.Y.S.2d 621).   Furthermore, the testimony carried no suggestion that defendant was involved with drug trafficking on a larger scale than at street level.   Although defendant argues that the expert testimony was cumulative to testimony given by the undercover officer, “[w]hether evidence should be excluded as cumulative is a matter that rests within the sound discretion of the trial court” (Rosabella v. Fanelli, 225 A.D.2d 1007, 1008, 639 N.Y.S.2d 573), and we do not find the evidence to be cumulative.

 There was no improper delegation of judicial authority to a court officer when the court, with defense counsel's consent, directed a court officer to inform the jurors that they could take a break and to remind them of the court's prior admonition not to engage in premature deliberations.   This constituted a ministerial act, not a judicial function (People v. Bonaparte, 78 N.Y.2d 26, 571 N.Y.S.2d 421, 574 N.E.2d 1027;  People v. Crespo, 267 A.D.2d 36, 700 N.Y.S.2d 117, lv. denied 94 N.Y.2d 878, 705 N.Y.S.2d 10, 726 N.E.2d 487;  People v. Sarasti, 228 A.D.2d 624, 645 N.Y.S.2d 39, lv. denied 88 N.Y.2d 994, 649 N.Y.S.2d 401, 672 N.E.2d 627).   Defendant's claim that the court officer may have provided substantive instructions is speculative and not supported by the record (see, People v. McPhatter, 235 A.D.2d 233, 653 N.Y.S.2d 1, lv. denied 89 N.Y.2d 1038, 659 N.Y.S.2d 869, 681 N.E.2d 1316).

 Defendant's claim that his conviction at a single trial of both criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds violate the prohibition against double jeopardy is without merit (People v. Gonzalez, 279 A.D.2d 273, 718 N.Y.S.2d 825, lv. granted 96 N.Y.2d 863, 730 N.Y.S.2d 37, 754 N.E.2d 1120).

 The conviction of criminal possession of a controlled substance in the third degree based on the heroin sold to the undercover officer is vacated in the interest of justice as a non-inclusory concurrent count of criminal sale of a controlled substance in the third degree (see, People v. Gaul, 63 A.D.2d 563, 404 N.Y.S.2d 603, lv. denied 45 N.Y.2d 780, 409 N.Y.S.2d 1037, 381 N.E.2d 172).

We have considered and rejected defendant's remaining claims.