People v. Garcia

788 N.Y.S.2d 599 | N.Y. App. Div. | 2005

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J), rendered August 9, 2002, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Bleakley, 69 NY2d 490 [1987]). There is no basis for disturbing the jury’s determinations concerning credibility and identification. The undercover officer provided a credible account of the drug sale and defendant’s participation therein.

Defendant’s challenges to the court’s main and supplemental charges, none of which are exempt from preservation requirements (see People v Thomas, 50 NY2d 467, 472 [1980]) are unpreserved (see People v Jackson, 76 NY2d 908 [1990]; People v Mosley, 67 NY2d 985 [1986]), and we decline to review them in the interest of justice. Were we to review these claims, we would find no basis for reversal. Although some of the language employed by the court was disapproved by this Court in People v Johnson (11 AD3d 224 [2004]), we find that in this case there was no prejudice to defendant because the court made it abundantly clear to the jury, particularly in the supplemental charge, that the People had the burden of proving every essential element beyond a reasonable doubt (see People v Cubino, 88 NY2d 998, 1000 [1996]). The other portions of the charge challenged by defendant on appeal were appropriate.

We perceive no basis for reducing the sentence.

We have considered and rejected defendant’s remaining claims. Concur — Buckley, PJ, Andrias, Nardelli, Gonzalez and Sweeny, JJ.