People v James
2011 NY Slip Op 02948 [83 AD3d 504]
April 14, 2011
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 8, 2011

The People of the State of New York, Respondent,
Daniel James, Appellant.

[*1] Steven Banks, The Legal Aid Society, New York (Adrienne Hale of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Brian J. Reimels of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered March 18, 2009, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second drug felony offender, to a term of five years, unanimously affirmed.

The court properly denied defendant's suppression motion. There was probable cause for defendant's arrest, based on the officer's observation, in a drug-prone location, of a pattern of behavior involving defendant and another individual, which included a suspicious exchange of small objects. Based on his training and experience, the officer recognized the overall pattern as characteristic of a narcotics transaction (see People v Jones, 90 NY2d 835 [1997]).

Defendant failed to preserve his arguments that the court improperly admitted expert testimony going to the ultimate issue of intent to sell, and failed to give a proper limiting instruction, and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. The testimony about quantities of drugs likely to be possessed by sellers as opposed to mere buyers was within the scope of expert evidence permitted under People v Hicks (2 NY3d 750 [2004]), and the court gave a sufficient limiting instruction (see People v Brown, 97 NY2d 500, 506 [2002]). Concur—Mazzarelli, J.P., Friedman, Acosta, DeGrasse and RomÁn, JJ.