PEOPLE v. RICHARDSON (2005)

Judgment, Supreme Court, New York County (John E.H. Stackhouse, J.), rendered December 20, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance on or near school grounds, criminal sale of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, 6 to 12 years and 1 year, respectively, unanimously affirmed.

 The court properly exercised its discretion when it permitted the undercover officer to give limited testimony regarding street-level drug operations, since this evidence was relevant to an issue raised by defendant concerning the failure of the police to recover the buy money (see People v. Brown, 97 N.Y.2d 500, 505-507, 743 N.Y.S.2d 374, 769 N.E.2d 1266 [2002] ).   Furthermore, there was a sufficient factual basis to conclude that defendant was not operating alone (see People v. Smith, 2 N.Y.3d 8, 12, 776 N.Y.S.2d 209, 808 N.E.2d 344 [2004];  People v. Bolden, 6 A.D.3d 315, 775 N.Y.S.2d 135 [2004], lv. denied 3 N.Y.3d 637, 782 N.Y.S.2d 408, 816 N.E.2d 198 [2004] ).   After agreeing to sell drugs to the undercover officer, defendant immediately made a phone call and went around a corner, and the sale, a few minutes later, occurred around the corner in the presence of a third man, who was later arrested when he was seen passing a pipe and drugs to defendant.   Defendant's remaining arguments regarding the undercover officer's background testimony are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would find no basis for reversal.

 The court properly exercised its discretion in permitting inquiry by the prosecutor about defendant's use of aliases notwithstanding that this subject was not addressed at the Sandoval hearing (see People v. Walker, 83 N.Y.2d 455, 462-464, 611 N.Y.S.2d 118, 633 N.E.2d 472 [1994];  People v. Brazeau, 304 A.D.2d 254, 256, 759 N.Y.S.2d 268 [2003], lv. denied 100 N.Y.2d 579, 764 N.Y.S.2d 389, 796 N.E.2d 481 [2003] ).   In any event, defendant opened the door to such evidence when, during his testimony, he created an issue about a discrepancy between his true name and the name under which he was being prosecuted.

Defendant's present objections to the court's agency charge are unpreserved and we decline to review them in the interest of justice. Contrary to defendant's assertion, there is no evidence that the transcript of his objections was lost.   The record supports the conclusion only that defense counsel made objections at an unrecorded colloquy, but failed to place the substance of those objections on the record (see People v. Kinchen, 60 N.Y.2d 772, 469 N.Y.S.2d 680, 457 N.E.2d 786 [1983] ).   Were we to reach this issue, we would find that the court's charge, taken as a whole, conveyed the proper standard to be applied by the jury in evaluating the agency defense (see People v. Samuels, 99 N.Y.2d 20, 25, 750 N.Y.S.2d 828, 780 N.E.2d 513 [2002];  People v. Ladd, 89 N.Y.2d 893, 895, 653 N.Y.S.2d 259, 675 N.E.2d 1211 [1996] ).

We decline to invoke our interest of justice jurisdiction to dismiss the non-inclusory concurrent count (see People v. Spence, 290 A.D.2d 223, 735 N.Y.S.2d 756 [2002], lv. denied 98 N.Y.2d 641, 744 N.Y.S.2d 770, 771 N.E.2d 843 [2002];  People v. Kulakov, 278 A.D.2d 519, 716 N.Y.S.2d 824 [2000], lv. denied 96 N.Y.2d 785, 725 N.Y.S.2d 649, 749 N.E.2d 218 [2001] ).

We perceive no basis for reducing the sentence.