New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
December 10, 2012
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
WENDELL GUTIERREZ, APPELLANT.
Appeal from a judgment of the City Court of Yonkers, Westchester County (Michael A. Martinelli, J.), rendered July 29, 2010.
People v Gutierrez (Wendell)
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: NICOLAI, P.J., IANNACCI and LaSALLE, JJ
The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the seventh degree.
ORDERED that the judgment of conviction is affirmed.
Defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review, since defendant failed to specify that the lack of sufficient evidence for the possession element of the crime was the basis of his dismissal motion (see CPL 470.05 ; People v Hawkins, 11 NY3d 484, 492 ; People v Gray, 86 NY2d 10, 19 ; People v Moore, 37 AD3d 498 ). In any event, upon a review of the evidence, we find that it was legally sufficient to establish defendant's guilt beyond a reasonable doubt of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). The standard of appellate review of legal sufficiency of the trial evidence is whether, viewed in the light most favorable to the People, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (People v Contes, 60 NY2d 620, 621 ).
At a jury trial, a police officer testified that while he was on surveillance, he observed a black male give defendant currency, that defendant took the money and walked into a nearby building, returning minutes later with a "clenched" right fist, that defendant then gave the buyer a handshake after which defendant's hand was open and the buyer's fist was clenched. Although the officer may not have seen what was exchanged for the currency, he recognized the behavior to represent a drug transaction. When defendant and the buyer were approached about 30 seconds later, a glassine of heroin was recovered from the buyer. Given the totality of the circumstances, the evidence was legally sufficient to establish that the heroin recovered from the buyer was sold to him by defendant as part of a drug transaction.
Accordingly, the judgment of conviction is affirmed.
Nicolai, P.J., Iannacci and LaSalle, JJ., concur. Decision Date: December 10, 2012
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