Calendar Date: January 9, 2013
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.
P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), for respondent.
Before: Rose, J.P., Spain, Stein and McCarthy, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered June 28, 2010, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree.
Defendant was charged with criminal sale of a controlled substance in the third degree after allegedly selling cocaine to a confidential informant (hereinafter CI). At the jury trial, the CI testified that he placed a call to defendant and asked to purchase $100 worth of cocaine. The CI was strip-searched and provided with buy money. He then met defendant and purchased a baggy containing a white powdery substance from him while sitting in defendant's minivan in the parking lot of a McDonald's restaurant. Although the recording device worn by the CI did not function, detectives were able to observe that defendant was the driver and the only other occupant of the minivan, and they continuously monitored the CI to ensure that he had no physical contact with anyone else during the operation. The baggy given to the detectives by the CI was tested and found to contain cocaine. Defendant was then convicted as charged and County Court sentenced him, as a second felony offender, to nine years in prison and three years of postrelease supervision.
Upon our review of the record, we conclude that the evidence was legally sufficient to establish defendant's commission of the crime of criminal sale of controlled substance in the third degree ( see Penal Law § 220.39 ; People v Phillips, 96 A.D.3d 1154, 1155-1156 , lv denied 19 N.Y.3d 1000 ; People v Ebron, 90 A.D.3d 1243, 1244 , lvs denied 19 N.Y.3d 863, 866 ; People v Chatham, 55 A.D.3d 1045, 1046 , lv denied 14 N.Y.3d 839 ). We also note that both the CI's motive for cooperating with the police and the minor discrepancy in his description of the appearance of the drugs purchased from defendant were fully explored on cross- examination. Giving appropriate deference to the jury's ability to view the witnesses and determine their credibility, we find no basis to disturb the verdict as against the weight of the evidence ( see People v Jones, 101 A.D.3d 1241, 1242 ; People v Morris, 101 A.D.3d 1165, 1165-1166 ; People v Chatham, 55 A.D.3d at 1046).
As for defendant's claim that there was no probable cause for his arrest, it was not raised before County Court and is, therefore, unpreserved for our review ( see CPL 470.05 ; People v Cruz, 89 A.D.3d 1464, 1465 , lvs denied 18 N.Y.3d 991, 993 ; People v Blanco, 253 A.D.2d 886, 886 , lv denied 92 N.Y.2d 1028 ; People v Boyd, 244 A.D.2d 497, 497 , lv denied 93 N.Y.2d 850 ). Nor were the People required to give defendant pretrial notice of the request that he display the tattoo on his neck by turning his head toward the jurors in order for them to see it ( see People v Hill, 82 A.D.3d 1715, 1716 , lv denied 17 N.Y.3d 806 ; People v Holmes, 304 A.D.2d 1043, 1044 , lv denied 100 N.Y.2d 642 ; People v Smith, 86 A.D.2d 251, 255 ). Further, County Court's Sandoval ruling reasonably balanced the probative value of defendant's prior convictions against the risk of unfair prejudice, and we reject the contention that the court abused its discretion ( see People v Smith, 18 N.Y.3d 588, 594 ; People v Newland, 83 A.D.3d 1202, 1203-1204 , lv denied 17 N.Y.3d 798 ; People v Wilson, 78 A.D.3d 1213, 1215-1216 , lv denied 16 N.Y.3d 747 ).
Finally, we find no basis to disturb the sentence. The mere fact that the sentence imposed after trial was greater than the pretrial offer is not proof that defendant was penalized for going to trial ( see People v Merritt, 96 A.D.3d 1169, 1172 , lv denied 19 N.Y.3d 1027 ; People v Danford, 88 A.D.3d 1064, 1068-1069 , lv denied 18 N.Y.3d 882 ; People v Young, 86 A.D.3d 796, 800 , lv denied 17 N.Y.3d 905 ). Here, while the pretrial offer likely reflects the fact that the credibility of the CI had not been tested, the jury credited his testimony, and the sentence imposed is certainly reasonable in light of defendant's prior criminal history ( see People v Ebron, 90 A.D.3d at 1246; People v Dowling, 75 A.D.3d 838, 841 , lv denied 15 N.Y.3d 952 ; People v Rolle, 72 A.D.3d 1393, 1397 , lv denied 16 N.Y.3d 745 ).
Spain, Stein and McCarthy, JJ., ...