| People v Wilkins |
| 2010 NY Slip Op 06117 [75 AD3d 847] |
| July 15, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v OmariWilkins, Appellant. |
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Malone Jr., J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered May 14, 2009, upon a verdict convicting defendant of the crime of criminal sale of acontrolled substance in the third degree.
On February 12, 2008, Saratoga County Deputy Sheriff Keith Clinton and a confidentialinformant purchased crack cocaine at a gas station in the Town of Colonie, Albany County froman individual who appeared to be staying at a motel near the gas station. Colonie Police OfficerStephen Donovan had accompanied the informant and Clinton, and observed the transactionfrom his location at a nearby gas pump. The following day, Donovan obtained photocopies of thedriver's licenses for two motel guests from the motel desk clerk, and, from those, he and Clintonidentified defendant as the seller. Defendant was subsequently arrested and charged withcriminal sale of a controlled substance in the third degree. He was found guilty following a jurytrial and was then sentenced to a prison term of 4½ years, with two years of postreleasesupervision. Defendant appeals.
Initially, we disagree with defendant's contention that the verdict was against the weight ofthe evidence. At trial, Donovan and Clinton both testified that they had observed the seller closeup and in a well-lit area, and identified defendant as the individual who had delivered the [*2]crack cocaine to Clinton. Although Clinton and Donovan providedapparently inaccurate height and weight estimates of the seller on the night of the transaction,that discrepancy presented a credibility issue, and the jury's resolution of such issue is accordedgreat deference (see People vWilson, 71 AD3d 1333, 1334 [2010]; People v Burroughs, 64 AD3d 894, 897 [2009], lv denied13 NY3d 794 [2009]). Moreover, the confidential informant wore a video and audio recordingdevice that recorded the incident. This recording was introduced at trial and provided evidence tocorroborate the testimony of Clinton and Donovan (see People v Darby, 72 AD3d 1280, 1282 [2010]). Although adifferent verdict would not have been unreasonable, the in-court identification of defendant ofboth Clinton and Donovan, as well as the testimony of their observations on the night of the sale,establish that "the jury was justified in finding . . . defendant guilty beyond areasonable doubt" (People vDanielson, 9 NY3d 342, 348 [2007]).
We are not persuaded by defendant's contention that County Court erred by finding, after ahearing, that the photographic identifications of him by Clinton and Donovan—bothexperienced narcotics investigators—were not unduly suggestive (see generally Peoplev Wharton, 74 NY2d 921 [1989]). Nor are we persuaded by the contention that CountyCourt improperly denied defendant's request for a missing witness charge. Considering that thejury heard the testimony of the two investigators who participated in the planned buy, as well asthe audio and video recording of the transactions between the informant and defendant, wecannot say that County Court abused its discretion in denying the charge request on the basis thatthe informant's testimony would have been cumulative (see People v Darby, 72 AD3d at1282-1283; People v White, 265 AD2d 843, 844 [1999], lv denied 94 NY2d 868[1999]). Moreover, defense counsel was expressly permitted to comment during summationregarding the People's failure to produce the informant at trial, rendering any alleged errorharmless (see People v Demagall,63 AD3d 34, 40 [2009], lv denied 12 NY3d 924 [2009]).
Finally, we have considered defendant's remaining contentions—that he did notreceive the effective assistance of counsel and that his sentence is harsh andexcessive—and find them to be unavailing.
Cardona, P.J., Mercure, Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.