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People v. Smith

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 11, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JAYSON SMITH, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Renee A. White, J.), rendered November 21, 2006, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to term of 4 years, unanimously affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Nardelli, Catterson, Renwick, Richter, JJ.

4593/05

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerning credibility and identification.

The record does not support defendant's claim that the People made a belated, midtrial disclosure of Rosario (People v Rosario, 9 NY2d 286 [1961], cert denied 368 US 866 [1961]) material. Instead, it supports the conclusion that the People made marked photocopies of prerecorded buy money, containing an officer's annotations, available to defendant for inspection prior to opening statements (see CPL 240.45[1][a]). In any event, regardless of the timing of the disclosure, there is no basis for reversal (see CPL 240.75), because the annotations were insignificant in the context of the case, defendant was able to cross-examine the officer about them, and defendant has not established any adverse effect on his trial strategy.

When a witness gave testimony that the court had previously precluded, the court directed the jury to disregard this testimony and defendant did not request any further remedy. Therefore, defendant did not preserve his present argument concerning this evidence (see People v Heide, 84 NY2d 943 [1994]), and we decline to review it in the interest of justice. As an alternative holding, we find that the curative instruction was sufficient to prevent any prejudice.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090611

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