| People v Davis |
| 2008 NY Slip Op 01219 [48 AD3d 1255] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Tyrone Davis,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 October 25, 2004. The judgment convicted defendant, upon a jury verdict, of criminalsale of a controlled substance in the second degree, criminal possession of a controlled substancein the third degree (three counts), and criminal possession of a controlled substance in the fourthdegree.
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, ofone count each of criminal sale of a controlled substance in the second degree (Penal Law§ 220.41 [1]) and criminal possession of a controlled substance in the fourth degree(§ 220.09 [1]), and three counts of criminal possession of a controlled substance in thethird degree (§ 220.16 [1], [12]). Defendant failed to preserve for our review hiscontention that the evidence is legally insufficient to establish his identity as the person whoengaged in drug transactions with an undercover police detective (see People v Gray, 86NY2d 10, 19 [1995]). In any event, defendant's contention is without merit inasmuch as, at trial,the detective identified defendant as the perpetrator (see generally People v Bleakley, 69NY2d 490, 495 [1987]). Contrary to defendant's further contention, the verdict is not against theweight of the evidence based upon discrepancies between the trial testimony of the detective andhis incident reports and grand jury testimony with respect to defendant's physical description andthe involvement of an informant. Those discrepancies did not render the detective's testimony"impossible of belief because it [was] manifestly untrue, physically impossible, contrary toexperience, or self-contradictory" (People v Wallace, 306 AD2d 802, 802-803 [internalquotation marks omitted]). Defendant also failed to preserve for our review his contention that hewas deprived of a fair trial based on prosecutorial misconduct on summation (see CPL470.05 [2]; People v Butler, 2 AD3d1457, 1458 [2003], lv denied 3 NY3d 637 [2004]) and, in any event, that contentionlacks merit. The prosecutor's statements were a fair response to defense counsel's summation and"did not exceed the bounds of legitimate advocacy" (People v Sinclair, 231 AD2d 926,926 [1996]). We reject the further contention of defendant that he was deprived of a fair trialbased on Supreme Court's refusal to give a missing witness charge with respect to twoindividuals. As the court properly determined in denying defendant's request with respect to oneof those individuals, defendant failed to establish that she [*2]wasunder the control of the People (see People v Savinon, 100 NY2d 192, 197 [2003]).Defendant's request for a missing witness charge with respect to the other individual wasproperly denied as untimely made, i.e., defendant failed to request the charge "as soon aspracticable so that the court [could] appropriately exercise its discretion and the parties [could]tailor their trial strategy to avoid 'substantial possibilities of surprise' " (People vGonzalez, 68 NY2d 424, 428 [1986]; see People v Coleman, 4 AD3d 677, 679 [2004], lv denied2 NY3d 797, 3 NY3d 672 [2004]; People v Alamo, 202 AD2d 349 [1994], lvdenied 84 NY2d 822 [1994]). The sentence is not unduly harsh or severe. Defendant'sremaining contentions are unpreserved for our review (see CPL 470.05 [2]), and in anyevent are without merit. Present—Hurlbutt, J.P., Smith, Centra, Lunn and Fahey, JJ.