| People v Simon |
| 2008 NY Slip Op 07778 [55 AD3d 378] |
| October 16, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v KerrySimon, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Martin J. Foncello of counsel), forrespondent.
Judgment, Supreme Court, New York County (Robert H. Straus, J., at hearing; Arlene R.Silverman, J., at jury trial and sentence), rendered May 30, 2007, convicting defendant ofcriminal sale of a controlled substance in or near school grounds, and sentencing him to a term ofsix years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis fordisturbing the jury's determinations concerning credibility and identification. The officer had anample opportunity to observe the sale, transmitted a detailed and accurate description, and madea reliable identification.
The court's response to a jury question regarding defendant's liability for the acts of otherswas meaningful and appropriately conveyed the applicable legal principles (see People vAlmodovar, 62 NY2d 126, 131 [1984]). The supplemental instruction sufficiently addressedthe precise concern raised by defense counsel during the court's colloquy with counsel regardingthe jury's note.
The hearing court properly denied defendant's motion to suppress identification and physicalevidence. The observing officer's radioed report containing a detailed description of defendant asa person who had just engaged in a drug transaction provided probable cause for defendant'sarrest, and the police recovered money from defendant as incident to the lawful arrest.Defendant's remaining suppression claims, along with his arguments concerning an allegedlyrepugnant verdict and the court's conduct of the trial, are unpreserved and we decline to reviewthem in the interest of justice. As an alternative holding, we find no basis for reversal.
Nevertheless, we note our disapproval of this trial Justice's continued penchant forimproperly interjecting herself into the proceedings despite our prior expressions of concern(see e.g. People v Canto, 31 AD3d 312, 313 [2006], lv denied 7 NY3d900 [2006], and cases cited therein). In this case, the trial Justice inappropriately interrupted theflow of defense counsel's cross-examination by asking questions in the nature of redirect, and ofhis summation by making [*2]counterarguments. However, thisconduct did not rise to the level of affecting the outcome or depriving defendant of a fair trial.Concur—Lippman, P.J., Andrias, Buckley, Sweeny and Renwick, JJ.