| People v Wilson |
| 2010 NY Slip Op 02442 [71 AD3d 1333] |
| March 25, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Durrell R.Wilson, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Broome County (Cerio, Jr., J.),rendered November 7, 2008, convicting defendant following a nonjury trial of the crimes ofcriminal sale of a controlled substance in the third degree and criminal sale of a controlledsubstance in or near school grounds.
On October 11, 2007, while working undercover, a detective from the Broome CountySheriff's Office called a cell phone number provided by a confidential informant (hereinafter CI)and arranged to meet an individual by the name of "Ace." Shortly before the meeting, thedetective looked at photographs of three individuals, including defendant, who were suspected ofusing the street name of "Ace" and of selling controlled substances. Upon arriving at a locationdesignated by Ace, a man the detective identified as defendant approached the car and sold thedetective $50 worth of cocaine in a "knotted wrap."[FN*]On October 25, 2007, the detective again called one of the cell phone numbers provided by theCI and arranged to meet Ace—this time at a location in close proximity to aschool—and purchased $50 worth of cocaine from a man who [*2]the detective again identified as defendant and as the same personwho sold him cocaine two weeks earlier.
Defendant was thereafter charged with criminal sale of a controlled substance in the thirddegree and criminal sale of a controlled substance in or near school grounds. Following anonjury trial, defendant was found guilty of both crimes. Prior to sentencing, defendant wrotethree letters to the judge formerly assigned to his case, which County Court treated as a motionto set aside the verdict pursuant to CPL 330.30 (1). County Court denied the motion andsubsequently proceeded to sentence defendant. Defendant now appeals, claiming that there waslegally insufficient evidence to convict him and that his convictions were against the weight ofthe evidence.
We affirm. The issues before us distill to the legal sufficiency and/or adequacy of theevidence as to defendant's identity. Initially, we note that defendant did not preserve forappellate review his claim that the People failed to adduce legally sufficient evidence that he wasthe person who sold cocaine to the detective on October 11 and 25, 2007 (see People vFinger, 95 NY2d 894, 895 [2000]; People v Scott, 67 AD3d 1052, 1054 [2009]; see generallyPeople v Gray, 86 NY2d 10 [1995]). Nevertheless, as part of our weight of the evidencereview, we necessarily evaluate the proof regarding each element of the crimes charged and, "[i]fbased on all the credible evidence a different finding would not have been unreasonable, then[we] must, like the trier of fact below, 'weigh the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony' " (People v Bleakley, 69 NY2d 490, 495 [1987], quoting People ex rel.MacCracken v Miller, 291 NY 55, 62 [1943]; see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Caston, 60 AD3d 1147,1148-1149 [2009]).
We are unpersuaded by defendant's contention that, with regard to his identity or connectionto the crimes, his convictions are against the weight of the evidence. The detective testified thathe got a "good look" at the person who sold him cocaine on the dates in question. On the firstoccasion, defendant approached the detective's truck and then leaned in through the passengerwindow to take the money from the detective and give him the cocaine. The two then had a briefconversation before the detective left the area. On the second occasion, after the detectiveobserved defendant walking towards his truck, defendant got into the passenger side of the truck,where he exchanged cocaine for money. The detective then drove defendant to a differentlocation. At trial, the detective identified defendant as being the same person from whom hepurchased cocaine on both occasions. Any inconsistencies between the descriptions of defendantcontained in various internal case file/agency reports and defendant's actual appearance raisedcredibility issues for the trier of fact to determine (see People v Douglas, 57 AD3d 1105, 1106 [2008], lvdenied 12 NY3d 783 [2009]). Upon our independent review of the evidence, we discern nobasis to disturb County Court's determinations regarding the credibility of this testimony.
Nor must we reach a different result than the factfinder due to the lack of fingerprintevidence, a cell phone trace or other physical or documentary evidence linking defendant to thecrimes. The People presented credible evidence that it is rare to obtain viable fingerprints from aplastic bag containing drugs and that the cell phones used in drug operations are generally notregistered. Additionally, we reject defendant's contention that the weight of the credible evidenceestablished that the detective actually purchased cocaine from Nigel Saunders (anotherindividual depicted in the photographs viewed by the detective before the controlled buys), not[*3]defendant, on October 11 and 25, 2007. The evidenceestablished that the detective separately identified Saunders in connection with a drug buy thattook place on October 16, 2007, and that Saunders was arrested as a result of that transaction.There was also testimony that multiple individuals commonly use the same "street name" andshare cell phones in connection with drug sales, providing a reasonable explanation for whydefendant and Saunders used the same street name and cell phone number. Thus, we concludethat defendant's convictions were not against the weight of the evidence (see People vDouglas, 57 AD3d at 1106; Peoplev Young, 35 AD3d 958, 960 [2006], lv denied 8 NY3d 929 [2007]).
Peters, J.P., Spain, Lahtinen and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: According to the record, a"knotted wrap" is the term commonly used for cocaine or crack cocaine packaged for sale in thecorner of a plastic bag.