| People v Miller |
| 2005 NYSlipOp 01131 |
| February 15, 2005 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v Elloheim Miller, Also Known as Elleheim Miller, Appellant. |
—[*1]
Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered January 24, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 5 to 10 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of dismissing one count of criminal possession of a controlled substance in the third degree, and otherwise affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Bleakley, 69 NY2d 490 [1987]). Issues concerning the credibility of witnesses, as well as defendant's opportunity to divest himself of the buy money, were properly considered by the jury and there is no basis for disturbing its determinations (see People v Gaimari, 176 NY 84, 94 [1903]).
However, defendant should not have been convicted of two possession counts based on his possession of a single bag containing both cocaine and heroin (see People v Martin, 153 AD2d 807, 808 [1989], lv denied 74 NY2d 950 [1989]). We therefore modify accordingly.
We perceive no basis for reducing the sentence.[*2]
We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief. Concur—Tom, J.P., Mazzarelli, Marlow, Nardelli and Catterson, JJ.