| People v Miles |
| 2009 NY Slip Op 02688 [61 AD3d 1118] |
| April 9, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v James Miles,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered October 20, 2007, upon a verdict convicting defendant of the crime of criminal sale of acontrolled substance in the third degree.
On October 5, 2006, Albany Police Detective Richard Gould and State Police InvestigatorCarla DiRienzo, as part of a drug investigation they were conducting in the City of Albany,employed a paid informant who made a controlled buy of cocaine from defendant. Aftercompleting their investigation, defendant was arrested and charged by indictment with criminalsale of a controlled substance in the third degree. After a trial, he was convicted as charged andwas sentenced to seven years in prison, to be followed by two years of postrelease supervision.Defendant now appeals arguing that his conviction is not supported by the weight of the credibleevidence and that the sentence imposed was harsh and excessive.
Specifically, defendant claims that the informant was not thoroughly searched—orcontrolled by the police prior to being sent out on the investigation—and, as a result, theinformant could have had cocaine on his person prior to having any contact with defendant. Inthat regard, Gould testified—and the informant confirmed—that Gould searched theinformant twice that day, the second search being performed shortly before the informant entered[*2]defendant's residence and purchased the cocaine. In additionto testifying that no contraband was found on the informant during either search, Gould alsotestified that the informant was under the constant surveillance of the police from the time he leftthe police vehicle to when he entered defendant's residence and, again, upon leaving theresidence and returning to their vehicle. In addition, the informant was wearing an electronictransmitter that allowed the police to monitor and record the conversation that he had withdefendant before and at the time of the sale. A tape recording of these conversations and, inparticular, the negotiations between the informant and defendant was admitted into evidence andplayed for the jury.
Defendant also argues that the informant's testimony and that of Gould was simply notbelievable and should have been discounted. The credibility of both witnesses was an issue thatwas fully litigated at trial and properly presented to the jury for its consideration (see People v Chatham, 55 AD3d1045, 1046 [2008]; People vThaddies, 50 AD3d 1249, 1250 [2008], lv denied 10 NY3d 965 [2008]), and wecannot say that either witness's testimony was incredible as a matter of law (see People v Douglas, 57 AD3d1105, 1106 [2008]; People vCarter, 57 AD3d 1017, 1018 [2008]). Viewing all of the evidence in a neutral light andaccording appropriate deference to the jury's assessment of the credibility of the witnesses whotestified at trial (id.), defendant's conviction was supported by the weight of the credibleevidence introduced at trial.
Given defendant's extensive criminal history, which includes two prior felony convictions,defendant's sentence—which was not the maximum sentence permissible by law(see Penal Law § 70.70 [2] [a])—was not harsh or excessive. In addition,we find no abuse of discretion or the existence of any extraordinary circumstances that wouldwarrant the reduction of the sentence in the interest of justice (see People v Guthrie, 57 AD3d1168, 1170 [2008]).
Cardona, P.J., Mercure, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.