| People v Massey |
| 2008 NY Slip Op 02750 [49 AD3d 462] |
| March 27, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Ronald Massey, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Eric Rosen of counsel), forrespondent.
Judgment, Supreme Court, New York County (Carol Berkman, J., at hearing; Edward J.McLaughlin, J., at jury trial and sentence), convicting defendant of criminal sale of a controlledsubstance in the third degree and resisting arrest, and sentencing him, as a second felony drugoffender, to an aggregate term of four years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence. There is no basis for disturbing the jury's determinations concerning credibility. Theaccount of the transaction given by the prosecution witnesses was at odds with defendant'sagency defense (see e.g. People v Lam Lek Chong, 45 NY2d 64, 74-75 [1978],cert denied 439 US 935 [1978]), and defendant's present argument rests on his owntestimony, which the jury was entitled to reject. Defendant's arguments concerning the resistingarrest conviction are without merit.
As defendant concedes, the fact that he interposed an agency defense permitted the People tointroduce evidence of prior drug sales. We reject defendant's argument that the court permittedelicitation of excessive and prejudicial details about his prior drug sale conviction. Thechallenged evidence was highly probative to refute his agency defense, and that probative valueoutweighed the potential for undue prejudice (see People v Castaneda, 173 AD2d 349,350 [1991], lv denied 78 NY2d 963 [1991]), which the court minimized by means of alimiting instruction. Moreover, defendant specifically opened the door to inquiry into the facts ofhis prior case when, on cross-examination, he testified that he was innocent of the prior crimenotwithstanding his guilty plea in that case.
The court properly denied defendant's suppression motion. Defendant's generalized argumentthat the police lacked probable cause for his arrest failed to preserve his present contentions(see People v Tutt, 38 NY2d 1011 [1976]), and we decline to review them in the interestof justice. As an alternative holding, we also reject them on the merits. The hearing evidencewarranted the conclusion that the arresting officer acted [*2]lawfully, pursuant to the fellow officer rule (see People vKetcham, 93 NY2d 416 [1999]; People v Green, 2 AD3d 279 [2003], lv denied 2 NY3d 740[2004]). Concur—Friedman, J.P., Gonzalez, McGuire and Moskowitz, JJ.