Opinion
December 12, 2000.
Judgment, Supreme Court, Bronx County (Nicholas Iacovetta, J.), rendered November 4, 1998, 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.
John M. Moreira, for respondent.
Leo Tsao, for defendant-appellant.
Nardelli, J.P., Mazzarelli, Lerner, Buckley, Friedman, JJ.
Expert testimony on the roles played by participants in typical street-level drug sales was properly admitted, even though the absence of buy money on defendant was explained by the fact that he was seen handing the money to another person, from whom it was recovered. The expert testimony was necessary to explain why defendant gave away the proceeds of the sale he had just completed, and was relevant as background to explain the accomplice's role, regardless of whether or not defendant was charged as a principal. Moreover, at the time the evidence was received, the People were still proceeding under an acting-in-concert theory, notwithstanding that the court ultimately decided that it was unnecessary to instruct the jury on accessorial liability (cf. People v. Herminio D., 273 A.D.2d 58, 708 N.Y.S.2d 869).
The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see, People v. Walker, 83 N.Y.2d 455, 458-459). The court, which suppressed much of defendant's extensive record, properly permitted cross-examination as to defendant's robbery conviction and limited underlying facts, as they were relevant to credibility, dissimilar to the instant charge against defendant, and not excessively remote given that defendant spent 9 of the intervening 10 years incarcerated (see, People v. Joyner, 270 A.D.2d 100, lv denied 94 N.Y.2d 949).
Defendant's claim concerning replacement of a sworn juror requires preservation (see, People v. Agramonte, 87 N.Y.2d 765), and we decline to review this unpreserved claim in the interest of justice. Were we to review this claim, we would reject it.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.