| People v Gomez |
| 2007 NY Slip Op 10174 [46 AD3d 836] |
| December 18, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AlezGomez, Also Known as Alex Gomez, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Ronit J. Berkovich of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Spires, J.),rendered February 15, 2006, convicting him of criminal sale of a controlled substance in the thirddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that the prosecution failed to prove his guilt by legally sufficientevidence because the undercover officers' testimony was so replete with inconsistencies that itwas incredible as a matter of law. However, because the defense did not move for dismissal untilafter summations, these arguments are unpreserved for appellate review (see People v Romero, 7 NY3d 911[2006]; People v Laguer, 235 AD2d 495 [1997]; People v Johnson, 210 AD2d174 [1994]). In any event, viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient toestablish, beyond a reasonable doubt, that the defendant knowingly and unlawfully sold cocaineto an undercover officer. Further, any inconsistencies between the testimony of the primaryundercover officer, to whom the defendant sold the cocaine, and the "ghost" undercover officerwho observed the transaction, with respect to events occurring immediately after the sale, did notrender their testimony incredible as a matter of law (see People v Foster, 64 NY2d 1144,1147 [1985], cert denied 474 US 857 [1985]; People v Brown, 233 AD2d 520,521 [1996]; People v Garafolo, 44 AD2d 86, 88 [1974]). Rather, the inconsistenciesconcern issues of credibility, which are primarily to be determined by the jury, which saw andheard the witnesses (see People v Dupont, 283 AD2d 587 [2001]; People v Ings,248 AD2d 485, 486 [1998]; People v Breland, 220 AD2d 678, 679 [1995]). [*2]Its determination should be accorded great weight on appeal andshould not be disturbed unless clearly unsupported by the record (see People v Romero, 7 NY3d633, 644-645 [2006]; People v Bleakley, 69 NY2d 490 [1987]; People vGarafolo, 44 AD2d at 88). Upon the exercise of our factual review power, we are satisfiedthat the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]).Ritter, J.P., Florio, McCarthy and Dickerson, JJ., concur.