Two similar cases are before the court for resolution.
In the first case, the defendant appeals from a judgment of the Supreme Court, Kings County, rendered 2 August 1988, convicting him of the drug crimes of criminal sale of a controlled substance in the third degree (two counts), and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
The court affirms the judgment.
The People’s evidence established the following facts:
On 4 November 1987, at approximately 5:00 P.M., an undercover officer approached the defendant and the codefendant LR who were standing next to a dumpster and asked for $40 worth of cocaine. The undercover officer gave the prerecorded money to the defendant and was given two packets of cocaine by the codefendant LR, who had retrieved the packets from a brown paper bag underneath the dumpster. A few minutes later, a second undercover officer conducted a similar transaction, giving the prerecorded money to the defendant and receiving a packet of cocaine from LR. Upon the defendant’s arrest, the arresting officers recovered the brown paper bag from the ground and the prerecorded money from R’s pocket.
In the analogous case of People v. Contes, the court finds that it was legally sufficient to establish the defendant’s guilt of the crimes of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree beyond a reasonable doubt. Moreover, upon the exercise of its factual review power, the court is satisfied that the verdict was not against the weight of the evidence. Reckless Endangerment could have been involved.
The defendant further alleges that the trial court’s participation in the questioning of witnesses for the People deprived him of a fair trial. The court disagrees. It must be noted that this issue has not been preserved for appellate review. In any event, a review of the record indicates that the trial court’s questioning only served to clarify testimony and facilitate the progress of the trial as was held in a similar case of People v. Yut Wai Tom.
The court has reviewed the defendant’s remaining contentions and find them to be either unpreserved for appellate review or without merit.
The second similar case is an appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered 29 July 2008, convicting him of criminal possession of a controlled substance in the third degree (two counts), criminal mischief in the fourth degree, criminal possession of a weapon in the fourth degree, criminally using drug paraphernalia in the second degree (two counts), and conspiracy in the fourth degree (two counts), upon a jury verdict, and imposing sentence. Domestic violence was not an issue.
The court affirms the judgment.
In People v Contes, the court viewed the evidence in the light most favorable to the prosecution and in this case, the court finds that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt.
In fulfilling the court’s responsibility to conduct an independent review of the weight of the evidence as was discussed in the case of People v Danielson, the court nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor as was also held in People v Mateo. Upon reviewing the record of this case, the court is satisfied that the verdict of guilt was not against the weight of the evidence as was previously held in People v Romero.
The defendant’s contention that the cocaine allegedly possessed by him on 7 February 2007 was improperly admitted into evidence is without merit. Reasonable assurances existed that the cocaine sought to be admitted was the same cocaine as was allegedly possessed by the defendant. Therefore, any deficiencies in the chain of custody went only to the weight to be given to the evidence, not its admissibility as was also held in People v Hawkins.
Contrary to the defendant’s contention, the trial court properly permitted the People to amend the indictment by changing the description of the weapon unlawfully possessed from switchblade knife to gravity knife. The defendant has not shown that he was prejudiced in any way by the amendment.
The court affirms the judgment and finds the defendant’s contentions without merit.
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