Opinion
September 12, 1991
Appeal from the Supreme Court, New York County (James J. Leff, J.).
We reject defendant's argument that the court erred in admitting explanatory testimony by the undercover police officer respecting general street drug sale practices inasmuch as this testimony was admissible to explain the absence of prerecorded buy money and contraband from the items seized from the defendant upon his arrest. (See, People v. Roman, 171 A.D.2d 562, lv denied 77 N.Y.2d 1000.) Defendant argued a case of mistaken identity at trial, and highlighted the fact that neither buy money nor contraband was found upon defendant's person at the time of his arrest. However, there was eyewitness testimony that defendant was seen transferring the prerecorded buy money to an accomplice who was later observed by arresting officers dropping what turned out to be the prerecorded five dollar bill used in the sale. In any event, the evidence in this case, including two eyewitnesses to the sale and the seizing of prerecorded buy money from defendant's accomplice, presents overwhelming evidence of guilt such as to render any possible error harmless. (See, People v. Matos, 165 A.D.2d 767, lv denied 76 N.Y.2d 988.)
As to defendant's argument his sentence is excessive because the evidence indicates only a single sale was involved, the claim is without merit in light of the record evidence and defendant's lengthy criminal record, which includes twelve convictions since 1985, some of which were drug related.
Concur — Carro, J.P., Wallach, Kupferman and Smith, JJ.