| People v Wingo |
| 2013 NY Slip Op 01298 [103 AD3d 1036] |
| February 28, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v TerryC. Wingo, Appellant. |
—[*1] Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Delaware County(Becker, J.), rendered January 31, 2011, upon a verdict convicting defendant of the crimeof criminal sale of a controlled substance in the third degree.
After a confidential informant (hereinafter CI) purchased cocaine from defendant, hewas charged with and convicted of criminal sale of a controlled substance in the thirddegree. County Court imposed a sentence of four years in prison followed by one year ofpostrelease supervision, plus a $5,000 fine and $50 restitution. Defendant appeals.
Defendant contends that his conviction is not supported by legally sufficientevidence and is against the weight of the evidence. Initially, we note that defendant failedto preserve his legal sufficiency argument by moving to dismiss at the close of thePeople's proof, but our review of the weight of the evidence necessarily includes ourverification that the elements of the crime were established (see People v Harvey, 96 AD3d1098, 1099 n [2012], lv denied 20 NY3d 933 [2012]). The CI testified thatshe made a telephone call to arrange to buy drugs, went to an apartment known for drugsales, gave defendant $50 and he gave her cocaine. A scientist testified that the substancedid, indeed, contain cocaine. Portions of the CI's testimony were inconsistent with herown testimony, her prior grand jury testimony or the testimony of the detective whosupervised the drug buy. Additionally, the CI was a drug addict, possibly used drugs onthe day of the buy, had a long criminal record, was working with the police to reduce[*2]criminal charges pending against her and had ninepending charges at the time of her testimony. These circumstances do not render hertestimony incredible as a matter of law. Because the jury was aware of thesecircumstances when assessing the CI's credibility, and obviously believed her testimonythat she purchased the cocaine from defendant, we will not intrude on the jury's findings(see People v Miles, 61AD3d 1118, 1120 [2009], lv denied 12 NY3d 918 [2009]). Therefore, theverdict is not against the weight of the evidence.
County Court's imposition of a $5,000 fine was proper. Defendant failed to preserveany challenge to the fine, as he did not object to its imposition at sentencing (seePeople v Carrillo, 257 AD2d 780, 783 [1999], lv denied 93 NY2d 967[1999]). In any event, the court was not required to make specific findings as they areonly necessary when the fine is based on any profit or gain that the defendant realizedfrom the commission of the crime (see Penal Law § 80.00 [3]; People vCarrillo, 257 AD2d at 783), which was not the basis here.
Defendant received the effective assistance of counsel. While counsel did not moveto dismiss at the close of the People's case or object to the fine at sentencing, defendantwas not prejudiced because the motion and objection would not have been successful.Counsel did not file a pretrial motion to exclude prior immoral and uncharged criminalacts of defendant, but such evidence was either admissible to provide backgroundinformation concerning the relationship between the witnesses and defendant or waselicited by defense counsel. Defendant now claims that counsel was ineffective foreliciting this information from the detective, but the questions that counsel asked appearto be part of a reasonable strategy and only inadvertently elicited the detective's negativeresponses about defendant, such as that he was a known drug dealer. Viewing the trialoverall, counsel effectively attacked the witnesses' credibility and advanced a legitimatedefense strategy, thereby providing meaningful representation (see People v Alsaifullah, 96AD3d 1103, 1105 [2012], lv denied 19 NY3d 994 [2012]; People v Bruno, 63 AD3d1297, 1298-1299 [2009], lv denied 13 NY3d 858 [2009]).
Rose, J.P., Spain and Stein, JJ., concur. Ordered that the judgment is affirmed.