PEOPLE v. REYES

Reset A A Font size: Print

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

The PEOPLE of the State of New York, Respondent, v. Jose REYES, Defendant-Appellant.

Decided: May 11, 2006

BUCKLEY, P.J., SAXE, NARDELLI, GONZALEZ, CATTERSON, JJ. Laura R. Johnson, The Legal Aid Society, New York (Mitchell J. Briskey of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Nicholas H. Penfold of counsel), for respondent.

Judgment, Supreme Court, New York County (John Cataldo, J.), rendered May 28, 2004, 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 a term of 5 to 10 years, unanimously affirmed.

 The court properly denied defendant's motion to dismiss the indictment.   During the grand jury presentation of this observation sale case, the prosecutor properly introduced evidence of an uncharged exchange between defendant and an unapprehended buyer which occurred several minutes before and at the same location as the defendant's drug sale with an apprehended buyer.   The uncharged exchange was admissible since it completed the narrative and was relevant to the observing officer's ability to make a reliable identification (see e.g. People v. LaFontaine, 22 A.D.3d 235, 803 N.Y.S.2d 7 [2005], lv. denied 5 N.Y.3d 883, 808 N.Y.S.2d 586, 842 N.E.2d 484 [2005] ).   Even assuming that the prosecutor should have given a limiting instruction about the permitted purposes of this evidence, the defect fell far short of impairing the integrity of the grand jury proceeding (see CPL 210.35[5];  People v. Darby, 75 N.Y.2d 449, 455, 554 N.Y.S.2d 426, 553 N.E.2d 974 [1990] ).

 The court properly exercised its discretion in denying defendant's mistrial motion based on a single isolated comment made by the prosecutor during summation.   The comment was not particularly prejudicial, and by sustaining defendant's objection the court took sufficient curative action (see People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668 [1981] ).