| People v Rose |
| 2010 NY Slip Op 09296 [79 AD3d 1365] |
| December 16, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v David H. Rose,Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Thomas D. Jackson Jr. of counsel), forrespondent.
Peters, J.P. Appeal from a judgment of the County Court of Broome County (Smith, J.), renderedMarch 20, 2009, upon a verdict convicting defendant of the crime of criminal sale of a controlledsubstance in the third degree.
Defendant was arrested and charged with criminal sale of a controlled substance in the third degreeafter allegedly selling cocaine to a confidential informant (hereinafter CI). Following a jury trial, he wasconvicted as charged and sentenced to four years in prison followed by three years of postreleasesupervision. Defendant appeals, and we affirm.
Defendant's challenge to the legal sufficiency of the evidence is unpreserved due to his failure tomake a particularized trial motion to dismiss identifying the specific deficiencies now alleged (see People v Garrow, 75 AD3d 849,850 [2010]; People v Burdick, 72 AD3d1399, 1400-1401 [2010]). Furthermore, after reviewing the evidence in a neutral light andaccording deference to the jury's ability to observe the witnesses and assess their credibility, we aresatisfied that defendant's conviction was not against the weight of the evidence (see People v Romero, 7 NY3d 633,643-644 [2006]; People v Kennedy, 75AD3d 766, 767 [2010], lv denied 15 NY3d 853 [2010]).
The trial evidence established that police investigators from the Endicott Police [*2]Department employed the CI, who had been utilized often in the past andhad proven to be reliable, to engage in a controlled buy from an individual named "Doc." After calling"Doc" to arrange the buy, the CI was searched, provided with five $20 bills in marked buy money andtransported by the investigating officers to the agreed-upon location. While under constant policesurveillance, the CI accompanied defendant in his truck and the two drove around for approximately 10minutes. Although the investigators did not observe the transaction, the CI testified that during the drivehe exchanged the marked money for a plastic wrapped, marble-sized ball of cocaine which defendantspit from his mouth. After exiting defendant's vehicle, the CI was picked up by the investigating officersand he turned over a substance that forensic testing later revealed to be cocaine. A pat-down search ofthe CI upon arrival back at the police station again revealed no drugs or money on his person. Shortlyafter the transaction, defendant was found by police to be in possession of the prerecorded buy money.
Although defendant denied making a sale and presented an innocent explanation as to why he metwith the CI and how he came into possession of the prerecorded buy money, the jury was free to rejectthis version of events (see People vMalcolm, 74 AD3d 1483, 1485 [2010]; People v Bradley, 272 AD2d 635, 636[2000]; People v Wells, 159 AD2d 799, 799-800 [1990]). Defendant's claim that the CIcould have secreted the cocaine on his person since he was subjected to a pat search, rather than astrip or body cavity search, before the transaction, and the fact that the CI admittedly had a history ofcooperating with the police in lieu of cash payments and the dismissal of criminal charges were fullylitigated at trial and properly presented to the jury for its consideration (see People v Stephens, 31 AD3d 890,891 [2006], lv denied 7 NY3d 870 [2006]; People v Williams, 25 AD3d 875, 875 [2006], lv denied 6NY3d 854 [2006]; People v Holliman,12 AD3d 773, 775 [2004], lvs denied 4 NY3d 764, 831 [2005]). Giving deference tothe jury's implicit resolution of these issues, we cannot say that the verdict was contrary to the weight ofthe evidence (see People v Carter, 57AD3d 1017, 1018 [2008], lv denied 12 NY3d 781 [2009]; People v Thaddies, 50 AD3d 1249,1250 [2008], lv denied 10 NY3d 965 [2008]; People v Stephens, 31 AD3d at 891).
Nor are we persuaded that defendant's sentence is harsh and excessive. In light of defendant'slengthy criminal history spanning over 30 years, which includes numerous convictions for drug-relatedcrimes, we find no abuse of discretion or extraordinary circumstances warranting a reduction of thesentence in the interest of justice (see Peoplev Robinson, 72 AD3d 1277, 1278 [2010], lv denied 15 NY3d 809 [2010]; People v Miles, 61 AD3d 1118, 1120[2009], lv denied 12 NY3d 918 [2009]).
Spain, Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the judgment is affirmed.