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People v. Darby

State of New York Supreme Court, Appellate Division Third Judicial Department


April 15, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
LEROY W. DARBY, ALSO KNOWN AS WILLIAM NEAL JR., ALSO KNOWN AS WILLIAM L. DARBY, ALSO KNOWN AS B, APPELLANT.

The opinion of the court was delivered by: Kavanagh, J.

MEMORANDUM AND ORDER

Calendar Date: February 17, 2010

Before: Peters, J.P., Malone Jr., Kavanagh, McCarthy and Garry, JJ.

Appeal from a judgment of the County Court of Columbia County (Nichols, J.), rendered October 28, 2008, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree (three counts) and criminal possession of a controlled substance in the seventh degree (three counts).

In January 2008, an undercover officer, while accompanied by a confidential informant, purchased cocaine on three separate occasions from an individual identified as B. Defendant was later identified by the undercover officer as the seller in a photo array conducted at police headquarters and subsequently charged in a six-count indictment with criminal sale of a controlled substance in the third degree (three counts) and criminal possession of a controlled substance in the seventh degree (three counts).*fn1 After trial, defendant was found guilty as charged and sentenced to an aggregate prison term of 16 years, plus four years of postrelease supervision. Defendant now appeals.

Initially, defendant claims that the evidence presented at trial was not legally sufficient to establish that he sold cocaine to the undercover officer and that his conviction was not supported by the weight of the credible evidence. We disagree. The undercover officer testified that he had three face-to-face encounters with the seller, provided a detailed description of him shortly after the sales took place and positively identified defendant in court as the individual who sold him the cocaine. The undercover officer's supervisor witnessed the third transaction and also identified defendant in court as the seller. Moreover, a videotape was made of the encounters and, while defendant apparently could not be identified from what appeared on the tape, it did serve to corroborate the officer's testimony that each transaction did, in fact, take place. This evidence provided a legally sufficient basis for defendant to be convicted of selling cocaine to the undercover officer and established that the jury's guilty verdict was supported by the weight of the credible evidence introduced at trial (see People v Douglas, 57 AD3d 1105, 1105-1106 [2008], lv denied 12 NY3d 783 [2009]; People v Morton, 56 AD3d 1054, 1055-1056 [2008], lv denied 12 NY3d 761 [2009]; see generally People v Guthrie, 57 AD3d 1168, 1170 [2008], lv denied 12 NY3d 816 [2009]).

Next, defendant takes issue with the fact that the identity of the confidential informant was not disclosed and, as a result, he was not able to call the informant as a witness at trial. In addition, he claims that County Court committed reversible error b


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