Hyperlawhypertext legal database People v. Lopez 288 A.D.2d 118

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People v. Lopez

288 A.D.2d 118 Court N.Y. App. Div. Decision date 2001-11-20 English

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p. 118
The People of the State of New York, Respondent, v Luis Lopez, Appellant.
[733 NYS2d 50]

—Judgment, Supreme

p. 119
Court, Bronx County (Megan Tallmer, J.), rendered March 6, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds, criminal sale of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the third degree, and upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to four concurrent terms of to 15 years concurrent with a term of 4V2 to 9 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the conviction of one count of criminal possession of a controlled substance in the third degree and dismissing that count, and otherwise affirmed.

The court properly exercised its discretion in admitting expert testimony on street-level narcotics transactions. The expert testimony was not based on speculation and was relevant to explain defendant’s role in the transaction and the absence of drugs or pre-recorded buy money on defendant’s person when arrested (see, People v Kelsey, 194 AD2d 248 ). Furthermore, the testimony carried no suggestion that defendant was involved with drug trafficking on a larger scale than at street level. Although defendant argues that the expert testimony was cumulative to testimony given by the undercover officer, “[wjhether evidence should be excluded as cumulative is a matter that rests within the sound discretion of the trial court” (Rosabella v Fanelli, 225 AD2d 1007 , 1008), and we do not find the evidence to be cumulative.

There was no improper delegation of judicial authority to a court officer when the court, with defense counsel’s consent, directed a court officer to inform the jurors that they could take a break and to remind them of the court’s prior admonition not to engage in premature deliberations. This constituted a ministerial act, not a judicial function (People v Bonaparte, 78 NY2d 26 ; People v Crespo, 267 AD2d 36 , lv denied 94 NY2d 878 ; People v Sarasti, 228 AD2d 624 , lv denied 88 NY2d 994 ). Defendant’s claim that the court officer may have provided substantive instructions is speculative and not supported by the record (see, People v MePhatter, 235 AD2d 233 , lv denied 89 NY2d 1038 ).

Defendant’s claim that his conviction at a single trial of both criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds violates the prohibition against double jeopardy is without merit (People v Gonzalez, 279 AD2d 273 , lv granted 96 NY2d 863 ).

p. 120
The conviction of criminal possession of a controlled substance in the third degree based on the heroin sold to the undercover officer is vacated in the interest of justice as a noninclusory concurrent count of criminal sale of a controlled substance in the third degree (see, People v Gaul, 63 AD2d 563 , lv denied 45 NY2d 780 ).

We have considered and rejected defendant’s remaining claims. Concur — Nardelli, J. P., Williams, Mazzarelli, Lerner and Friedman, JJ.

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