| People v Grubbs |
| 2008 NY Slip Op 00918 [48 AD3d 1186] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Johnny L.Grubbs, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered September 17, 2004. The judgment convicted defendant, upon a jury verdict, ofcriminal sale of a controlled substance in the third degree and criminal possession of a controlledsubstance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) andcriminal possession of a controlled substance in the third degree (§ 220.16 [1]). Defendantfailed to preserve for our review his contention that Supreme Court erred in sentencing him as asecond felony offender based on his conviction of a crime in Florida. In any event, thatcontention lacks merit. Penal Law § 70.06 (1) (a) provides in relevant part that a secondfelony offender is "a person . . . who stands convicted of a felony . . .after having previously been subjected to one or more predicate felony convictions" and, indetermining whether a foreign crime is equivalent to a New York felony and thus constitutes apredicate felony conviction, "the court must examine the elements of the foreign statute andcompare them to an analogous Penal Law felony, for '[i]t is the statute upon which the indictmentwas drawn that necessarily defines and measures the crime' " (People v Gonzalez, 61NY2d 586, 589 [1984]). Here, defendant's presentence report indicated that in 1995 defendantwas convicted in Florida of a third-degree felony that makes it "unlawful for any person to sell,manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlledsubstance" (Fla Stat Ann § 893.13 [1] [a]). "[G]uilty knowledge" is an element of thatcrime (Chicone v State, 684 So 2d 736, 738 [Fla 1996]). We thus conclude that thepredicate Florida felony is the equivalent of two New York felonies, i.e., criminal possession of acontrolled substance in the third degree (Penal Law § 220.16 [1]) and criminal sale of acontrolled substance in the third degree (§ 220.39 [1]).
Defendant failed to preserve for our review his further contention that the evidence is legallyinsufficient to support the conviction inasmuch as he did not renew his motion for a trial [*2]order of dismissal after he presented evidence (see People v Lane, 7 NY3d 888,889 [2006]). In any event, that contention is without merit. The People presented the testimonyof three police officers, each of whom witnessed a man matching defendant's description,complete an undercover drug transaction, and one of those officers positively identifieddefendant as the person who sold him cocaine. We reject defendant's contention that the verdictis against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Although the marked "buy money" was not found in the possession of defendant whenhe was arrested a few minutes after the transaction, the jury was entitled to credit the testimonyof the police officers, and "[g]reat deference is accorded to the fact-finder's opportunity to viewthe witnesses, hear the testimony and observe demeanor" (id.; see People v Harris, 15 AD3d 966,967 [2005], lv denied 4 NY3d 831 [2005]).
The sentence is not unduly harsh or severe. We have considered defendant's remainingcontentions and conclude that they are without merit. Present—Gorski, J.P., Martoche,Smith, Centra and Green, JJ.