People v. Vargas

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before SULLIVAN
• Citation: People v. Vargas, 624 N.Y.S.2d 11, 213 A.D.2d 258 (N.Y. App. Div. 1995)
• Decision Date: 16 March 1995
• Parties: The PEOPLE of the State of New York, Respondent, v. Hector VARGAS, Defendant-Appellant.

Page 11

624 N.Y.S.2d 11

213 A.D.2d 258

The PEOPLE of the State of New York, Respondent, v. Hector VARGAS, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

March 16, 1995.

D. Krone, for People.

C. Trupp, for Hector Vargas.

Before SULLIVAN, J.P., and ELLERIN, WALLACH, KUPFERMAN and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Bernard Fried, J.), rendered October 6, 1993, convicting defendant, after jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 1 1/2 to 4 1/2 years, unanimously affirmed.

In this "buy-and-bust" prosecution, in which the nonrecovery of buy money was integral to the defense of misidentification it was relevant and material, as background evidence, for police officers to describe the organization and execution of a buy-and-bust operation (People v. Kelsey, 194 A.D.2d 248, 606 N.Y.S.2d 621; People v. Ramos, 192 A.D.2d 324, 595 N.Y.S.2d 477, lv. denied 81 N.Y.2d 1078, 601 N.Y.S.2d 598, 619 N.E.2d 676), as well as to explain why buy money often is not recovered from suspects (People v. Kelsey, id.; People v. Tevaha, 204 A.D.2d 92, 611 N.Y.S.2d 179, affd. 84 N.Y.2d 879, 620 N.Y.S.2d 786, 644 N.E.2d 1342). The mere fact that such evidence is introduced from several sources does not deprive the defendant of a fair trial. While it is the better practice for police officers not to quantify their experiences when drug suspects are not in possession of buy money (see, People v. Kelsey, id.), such testimony in this case does not warrant reversal (People v. Tevaha, supra ).

Defendant failed to preserve his bolstering claims (People v. Carolina, 211 A.D.2d 454, 621 N.Y.S.2d 49). Since an arresting officer may testify that he or she acted on a description provided by the undercover officer, and that the suspect fit that description (People v. Hynes, 193 A.D.2d 516, 598 N.Y.S.2d 182, lv. denied 82 N.Y.2d 755, 603 N.Y.S.2d 997, 624 N.E.2d 183), and that the undercover officer confirmed the identification (People v. Chapman, 202 A.D.2d 297, 609 N.Y.S.2d 177, lv. denied 83 N.Y.2d 965, 616 N.Y.S.2d 18, 639 N.E.2d 758), we find no basis to review in the interest of justice.

We have considered the remaining claims and find they do not warrant any modification of the judgment.