| People v Chatham |
| 2008 NY Slip Op 08031 [55 AD3d 1045] |
| October 23, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Eric Chatham,Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Alfred D. Chapleau of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Schenectady County (Hoye, J.),rendered May 11, 2006, upon a verdict convicting defendant of the crimes of criminal possession of acontrolled substance in the third degree (three counts), criminal sale of a controlled substance in thethird degree (two counts) and attempted criminal sale of a controlled substance in the third degree.
Following a jury trial, defendant was convicted of criminal possession of a controlled substance inthe third degree (three counts), criminal sale of a controlled substance in the third degree (two counts)and attempted criminal sale of a controlled substance in the third degree and sentenced to concurrentprison terms, the longest of which was 4 to 12 years, followed by two years of postrelease supervision.
Initially, we are unpersuaded by defendant's contention that County Court erred in denying hismotion to suppress the pretrial identification. The photo array and testimony at the Wadehearing provided prima facie evidence that the identification procedure employed was reasonable andnot unduly suggestive (see People v Chipp, 75 NY2d 327, 335 [1990], cert denied498 US 833 [1990]; People v Coleman,2 AD3d 1045, 1046 [2003]). Thereafter, the burden shifted to defendant to establish that theidentification was infected by impropriety or undue suggestiveness (see People v Chipp, 75NY2d at 336; People v Coleman, 2 AD3d at 1046), [*2]which defendant failed to do here.
Next, defendant contends that the evidence was legally insufficient and the verdict was against theweight of the evidence. The proof at trial established that in connection with an investigation intopotential drug trafficking at defendant's residence, police investigators employed a confidential informantwho had previously proven reliable. After searching the confidential informant, investigators fitted himwith a wire, provided him with buy money and escorted him to an area near defendant's apartment. Theconfidential informant testified that on two occasions he purchased a plastic bag of crack cocaine fromdefendant which he gave to the investigators. The confidential informant also indicated that whileattempting to purchase cocaine a third time, defendant, after throwing a plastic bag on the ground, wasarrested prior to consummating the sale. The contents of all three plastic bags tested positive forcocaine. Audiotape recordings of the controlled buys were played for the jury. We also note that theinvestigators did not observe the actual drug-sale transactions, but testified as to other corroboratingdetails and seeing defendant possess a plastic bag that he discarded just prior to his arrest.
Viewing the evidence in a light most favorable to the People, we find that there is a valid line ofreasoning and permissible inferences from which the jury could rationally conclude that defendant, withthe requisite intent, possessed narcotics, selling them on two occasions and attempting to sell them onanother (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Stephens, 31 AD3d 890, 891[2006], lv denied 7 NY3d 870 [2006]; People v Ward, 27 AD3d 776, 777 [2006], lv denied 7 NY3d764 [2006]). Furthermore, we note that the testimony of the confidential informant was not incredibleas a matter of law (see People v Ward, 27 AD3d at 777; People v Holliman, 12 AD3d 773, 775 [2004], lv denied 4NY3d 831 [2005]) and, weighing the probative force of the conflicting testimony and the relativestrength of any conflicting inferences which may be drawn therefrom, as well as giving due deference tothe jury's credibility assessments, we conclude that the verdict was not against the weight of theevidence (see People v Bleakley, 69 NY2d at 495).
To the extent that defendant contends that he was denied the effective assistance of counsel, wefind that the record, viewed in totality and at the time of representation, demonstrates that he wasafforded meaningful representation (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Burch, 45 AD3d 1188,1189-1190 [2007]). Finally, we find no abuse of discretion warranting a reduction of the sentence inthe interest of justice.
Defendant's remaining contentions raised in his pro se brief have been reviewed and are eitherwithout merit or involve matters outside the record.
Carpinello, Rose, Kane and Kavanagh, JJ., concur. Ordered that the judgment is affirmed.