58 A.D.2d 783 | N.Y. App. Div. | 1977
Judgment, Supreme Court, Bronx County, rendered December 16, 1974, convicting the defendant after a jury trial of the crime of criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the first degree, modified, on the law, to reverse the conviction of the crime of criminal sale of a controlled substance in the first degree and grant a new trial on that count, and otherwise afiirmed. Undercover Police Officer Sylvio Lugo, after frequenting certain bars, became acquainted with the defendant Antonio Roche. At one of these encounters, Lugo mentioned to Roche that he would be interested in purchasing heroin, and Roche in turn gave Lugo his telephone number and told him to call when he (Lugo) was ready to make a purchase. Lugo finally contacted Roche and arranged to buy an "eighth,” which is approximately four ounces of heroin, at a cost of approximately $4,000. A rendezvous for the sale was set and Lugo arrived at the designated time and place in his car. Roche then directed Lugo to drive downtown, where Roche alighted. He came back a short time later after entering the Les Nanettes Bar for a few minutes to "see the man.” When Roche returned, he told Lugo that everything had been arranged and that the purchase price would be $4,000. Lugo agreed to the price and gave the money to Roche, who reentered Les Nanettes Bar with the money and then returned directing Lugo to still another location for the drug transfer. Arriving at the Cheetah Discotheque, both Lugo and Roche went to the upstairs section to await delivery. Roche went downstairs to look around, and during that time was under the observation of Lugo. Lugo saw a shabbily dressed individual enter the bar, with a newspaper partially concealing a package under his arm. Lugo went to join Roche and was told by Roche to return to his position upstairs. Lugo, though acquiescing, still observed the interaction between