PEOPLE v. TOPPY (2009)

Judgment, Supreme Court, New York County (Eduardo Padro, J.), rendered August 12, 2005, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds, and sentencing her, as a second felony offender, to concurrent terms of 41/212 to 9 years, unanimously affirmed.

In this observation sale case, the court properly exercised its discretion in receiving, with suitable limiting instructions, evidence of a contemporaneous uncharged sale to an unapprehended buyer. This sale was relevant to establish the observing officer's ability to make a reliable identification, to complete the narrative of events leading up to the arrest, and to explain why the observing officer targeted defendant and focused on her activity (see e.g. People v. Carter, 77 N.Y.2d 95, 107 [1990], cert denied 499 U.S. 967 [1991]; People v. Urena, 306 A.D.2d 137 [2003] ), lv denied 100 N.Y.2d 625 [2003]; People v. Julius, 300 A.D.2d 167, 168 [2002], lv denied 99 N.Y.2d 655 [2003]; see also People v. Matthews, 276 A.D.2d 385 [2000], lv denied 96 N.Y.2d 736 [2001] ). We have repeatedly upheld such use of contemporaneous uncharged sales, which “carr[y] relatively little suggestion of general criminal propensity” (People v. Pressley, 216 A.D.2d 202 [1995], lv denied 86 N.Y.2d 800 [1995] ). With regard to the observing officer's brief mention of defendant's quick exchange with an unidentified man prior to the uncharged sale, defendant has not preserved her current complaint, and we decline to review it in the interest of justice. As an alternative holding, we likewise find this testimony relevant and nonprejudicial.

The court properly exercised its discretion in denying defendant's mistrial motions based on two comments by the prosecutor during summation. As to the first remark, the court's curative actions were sufficient, and the second remark constituted fair comment on the evidence and a reasonable inference to be drawn therefrom. Defendant's remaining challenges to the summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133 [1997], lv denied 91 N.Y.2d 976 [1998]; People v. D'Alessandro, 184 A.D.2d 114, 118-119 [1992], lv denied 81 N.Y.2d 884 [1993] ).