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People v. Birch

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


January 7, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ROBERT BIRCH, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J), rendered August 7, 2008, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a 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.

Mazzarelli, J.P., Friedman, Nardelli, Renwick, RomÁn, JJ.

5454/07

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. The evidence provided a satisfactory explanation for the fact that two officers made different observations, and defendant's arguments to the contrary are without merit.

The court properly exercised its discretion in admitting evidence that, earlier in the evening of the charged sale, the observing officer saw defendant make what appeared to be a drug sale to an unapprehended buyer. This evidence completed the narrative and its probative value outweighed its prejudicial effect (see e.g. People v Urena, 306 AD2d 137 [2003]), lv denied 100 NY2d 625 [2003]). While the court should have provided a limiting instruction regarding the uncharged crime, we find, to the extent the claim is preserved, that any error is harmless.

We perceive no basis for reducing the sentence.

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

20100107

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