| People v Birch |
| 2010 NY Slip Op 00064 [69 AD3d 425] |
| January 7, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Robert Birch, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (David P. Stromes of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered August 7,2008, convicting defendant, after a jury trial, of criminal sale of a controlled substance in thethird degree, and sentencing him, as a second felony offender, to a term of four years,unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's determinations concerning credibility. The evidence provided asatisfactory explanation for the fact that two officers made different observations, anddefendant's arguments to the contrary are without merit.
The court properly exercised its discretion in admitting evidence that, earlier in the eveningof the charged sale, the observing officer saw defendant make what appeared to be a drug sale toan unapprehended buyer. This evidence completed the narrative and its probative valueoutweighed its prejudicial effect (see e.g. People v Urena, 306 AD2d 137 [2003],lv denied 100 NY2d 625 [2003]). While the court should have provided a limitinginstruction regarding the uncharged crime, we find, to the extent the claim is preserved, that anyerror is harmless.
We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P., Friedman,Nardelli, Renwick and RomÁn, JJ.