People v. Davis

609 N.Y.S.2d 212 | N.Y. App. Div. | 1994

—Judgment, Supreme Court, New York County (Bernard Fried, J.), rendered May 13, 1992, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the fifth degree and criminal possession of a controlled substance in the seventh degree, and sentencing her, as a second felony offender, to a term of 2 Vi to 5 years, and time served, respectively, unanimously affirmed.

Viewing the evidence in a light most favorable to the People and giving them the benefit of every reasonable inference (People v Malizia, 62 NY2d 755, 757, cert denied 469 US 932), defendant’s guilt was proven beyond a reasonable doubt by legally sufficient evidence that defendant "steered” an undercover officer to the codefendant for the purchase of valium (see, People v Ray, 188 AD2d 288, 289, lv denied 81 NY2d 845). The fact that neither the prerecorded buy money nor drugs were found on defendant does not negate her accessorial liability under Penal Law § 20.00 (People v Smith, 179 AD2d 355, lv denied 79 NY2d 953). Moreover, upon an independent review of the facts, we find that the verdict was not against the weight of the evidence (People v Bleakley, 69 NY2d 490).

Defendant’s claim that the court’s instructions near the end of its charge that the jury "should make every effort to come to [an] agreement which speaks the truth as far as this case is concerned” diluted the People’s burden of proof is not preserved for review as a matter of law (CPL 470.05 [2]; People v Ellis, 184 AD2d 307, 308, lv denied 80 NY2d 929). In any event, were we to review the claim in the interest of justice, we would find that the charge as a whole conveyed the appropriate legal standards concerning the People’s burden of proof (see, People v Rosa, 187 AD2d 355, 356, lv denied 81 NY2d 892). Concur — Rosenberger, J. P., Kupferman, Rubin and Williams, JJ.