People v. Cassidy

• Decision Date: 03 February 2015
• Citation: 998 N.Y.S.2d 880,125 A.D.3d 412,2015 N.Y. Slip Op. 00803
• Parties: The PEOPLE of the State of New York, Respondent, v. Dashawn CASSIDY, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

?125 A.D.3d 412
998 N.Y.S.2d 880
2015 N.Y. Slip Op. 00803

The PEOPLE of the State of New York, Respondent,
v.
Dashawn CASSIDY, Defendant–Appellant.

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

Feb. 3, 2015

Steven Banks, The Legal Aid Society, New York (Allen Fallek of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.

Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered March 9, 2011, 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 him to an aggregate term of 30 days, concurrent with 5 years' probation, unanimously affirmed.

The court properly exercised its discretion in receiving carefully limited evidence that, before the drug transaction, the undercover officer was shown photographs of defendant and other persons he might see on the street. On its face, this evidence did not constitute evidence of uncharged crimes ( see People v. Correa, 16 A.D.3d 355, 792 N.Y.S.2d 63 [1st Dept.2005], lv. denied 5 N.Y.3d 787, 801 N.Y.S.2d 808, 835 N.E.2d 668 [2005] ). In any event, even if

[998 N.Y.S.2d 881]

this testimony may have contained an implication of uncharged drug activity, it was more probative than prejudicial under the circumstances of the case. Evidence that defendant was already known to the police was necessary to enable the jury to understand how defendant came to be arrested two days later at his home, by an officer who did not witness the sale ( see People v. Stevenson, 67 A.D.3d 605, 889 N.Y.S.2d 182 [1st Dept.2009], lv. denied 14 N.Y.3d 805, 899 N.Y.S.2d 140, 925 N.E.2d 944 [2010] ). This evidence was also probative of the undercover officer's ability to identify defendant ( see People v. Williams, 12 A.D.3d 183, 184, 783 N.Y.S.2d 581 [1st Dept.2004], lv. denied 4 N.Y.3d 769, 792 N.Y.S.2d 13, 825 N.E.2d 145 [2005] ).

Defendant did not preserve his claims regarding the court's failure to deliver a limiting instruction as promised ( see People v. Whalen, 59 N.Y.2d 273, 280, 464 N.Y.S.2d 454, 451 N.E.2d 212 [1983] ), testimony on the roles of participants in narcotics sales, and the People's summation, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal.

MAZZARELLI, J.P., SWEENY, MOSKOWITZ, DeGRASSE, MANZANET–DANIELS, JJ., concur.