| People v Tisdale |
| 2013 NY Slip Op 01109 [103 AD3d 987] |
| February 21, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JuliusTisdale, Also Known as E, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), forrespondent.
Rose, J.P. Appeal from a judgment of the County Court of Albany County (Breslin,J.), rendered June 28, 2010, upon a verdict convicting defendant of the crime of criminalsale of a controlled substance in the third degree.
Defendant was charged with criminal sale of a controlled substance in the thirddegree after allegedly selling cocaine to a confidential informant (hereinafter CI). At thejury trial, the CI testified that he placed a call to defendant and asked to purchase $100worth of cocaine. The CI was strip-searched and provided with buy money. He then metdefendant and purchased a baggy containing a white powdery substance from him whilesitting in defendant's minivan in the parking lot of a McDonald's restaurant. Although therecording device worn by the CI did not function, detectives were able to observe thatdefendant was the driver and the only other occupant of the minivan, and theycontinuously monitored the CI to ensure that he had no physical contact with anyone elseduring the operation. The baggy given to the detectives by the CI was tested and found tocontain cocaine. Defendant was then convicted as charged and County Court sentencedhim, as a second felony offender, to nine years in prison and three years of postreleasesupervision.[*2]
Upon our review of the record, we conclude thatthe evidence was legally sufficient to establish defendant's commission of the crime ofcriminal sale of controlled substance in the third degree (see Penal Law §220.39 [1]; People vPhillips, 96 AD3d 1154, 1155-1156 [2012], lv denied 19 NY3d 1000[2012]; People v Ebron, 90AD3d 1243, 1244 [2011], lv denied 19 NY3d 863 [2012]; People v Chatham, 55 AD3d1045, 1046 [2008], lv denied 14 NY3d 839 [2010]). We also note that boththe CI's motive for cooperating with the police and the minor discrepancy in hisdescription of the appearance of the drugs purchased from defendant were fully exploredon cross- examination. Giving appropriate deference to the jury's ability to view thewitnesses and determine their credibility, we find no basis to disturb the verdict asagainst the weight of the evidence (see People v Jones, 101 AD3d 1241, 1242 [2012]; People v Morris, 101 AD3d1165, 1165-1166 [2012]; People v Chatham, 55 AD3d at 1046).
As for defendant's claim that there was no probable cause for his arrest, it was notraised before County Court and is, therefore, unpreserved for our review (seeCPL 470.05 [2]; People vCruz, 89 AD3d 1464, 1465 [2011], lv denied 18 NY3d 993 [2012];People v Blanco, 253 AD2d 886, 886 [1998], lv denied 92 NY2d 1028[1998]; People v Boyd, 244 AD2d 497, 497 [1997], lv denied 93 NY2d850 [1999]). Nor were the People required to give defendant pretrial notice of the requestthat he display the tattoo on his neck by turning his head toward the jurors in order forthem to see it (see People vHill, 82 AD3d 1715, 1716 [2011], lv denied 17 NY3d 806 [2011];People v Holmes, 304 AD2d 1043, 1044 [2003], lv denied 100 NY2d642 [2003]; People v Smith, 86 AD2d 251, 255 [1982]). Further, County Court'sSandoval ruling reasonably balanced the probative value of defendant's priorconvictions against the risk of unfair prejudice, and we reject the contention that thecourt abused its discretion (seePeople v Smith, 18 NY3d 588, 594 [2012]; People v Newland, 83 AD3d 1202, 1203-1204 [2011],lv denied 17 NY3d 798 [2011]; People v Wilson, 78 AD3d 1213, 1215-1216 [2010], lvdenied 16 NY3d 747 [2011]).
Finally, we find no basis to disturb the sentence. The mere fact that the sentenceimposed after trial was greater than the pretrial offer is not proof that defendant waspenalized for going to trial (seePeople v Merritt, 96 AD3d 1169, 1172 [2012], lv denied 19 NY3d 1027[2012]; People v Danford,88 AD3d 1064, 1068-1069 [2011], lv denied 18 NY3d 882 [2012]; People v Young, 86 AD3d796, 800 [2011], lv denied 17 NY3d 905 [2011]). Here, while the pretrialoffer likely reflects the fact that the credibility of the CI had not been tested, the jurycredited his testimony, and the sentence imposed is certainly reasonable in light ofdefendant's prior criminal history (see People v Ebron, 90 AD3d at 1246; People v Dowling, 75 AD3d838, 841 [2010], lv denied 15 NY3d 952 [2010]; People v Rolle, 72 AD3d1393, 1397 [2010], lv denied 16 NY3d 745 [2011]).
Spain, Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.