| People v Bausano |
| 2014 NY Slip Op 07885 [122 AD3d 1341] |
| November 14, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRichard Bausano, Appellant. |
Charles Marangola, Moravia, for defendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Brian N. Bauersfeld of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.),rendered August 15, 2013. The judgment convicted defendant, upon a jury verdict, ofcriminal sale of a controlled substance in the third degree and criminal possession of acontrolled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of criminal sale of a controlled substance in the third degree (Penal Law§ 220.39 [1]) and criminal possession of a controlled substance in the thirddegree (§ 220.16 [1]) in connection with the sale to a confidential informant(CI) of 25 oxycodone pills. Contrary to defendant's contention, County Court properlygranted the People's motion to amend the indictment to reflect that the controlledsubstance at issue was oxycodone, and not cocaine. Although the grand jury minutes arenot included in the record on appeal, the record nevertheless establishes that thelaboratory report admitted in evidence during the grand jury proceeding identified thepills that were analyzed as oxycodone. We therefore conclude that the court'sdetermination to amend the indictment based upon a scrivener's error neither changed thetheory of the prosecution nor tended to prejudice defendant on the merits (see People v Wright, 107AD3d 1398, 1400 [2013], lv denied 23 NY3d 1026 [2014]; cf. People v McKinney, 91AD3d 1300, 1300 [2012]). We reject defendant's further contention that the court'sSandoval ruling constitutes reversible error. The court did not abuse itsdiscretion, but instead " 'weighed appropriate concerns and limited both thenumber of convictions and scope of permissible cross-examination' " (People v Reed, 115 AD3d1334, 1336 [2014], lv denied 23 NY3d 1024 [2014], quoting People vHayes, 97 NY2d 203, 208 [2002]).
By making only a general motion to dismiss the indictment (see People vGray, 86 NY2d 10, 19 [1995]), and failing to renew that motion at the close of hiscase (see People v Hines, 97 NY2d 56, 62 [2001], rearg denied 97 NY2d678 [2001]), defendant failed to preserve for our review his contention that theconviction is not supported by legally sufficient evidence. In any event, we conclude thatdefendant's contention is without merit. In addition to the testimony of the CI, two policewitnesses testified regarding their continuous observations of the CI, including hismeeting with defendant. Both police witnesses testified that, after he left defendant, theCI turned over to the police 25 oxycodone pills, i.e., the precise purchase amount thathad been arranged, and that the CI did not have the buy money on his person or in hisvehicle. Viewing the evidence in the light most favorable to the People, we conclude thatthe evidence is legally sufficient to support the conviction (see People v Bleakley,69 NY2d 490, 495 [1987]). We further conclude that, viewing the evidence in light ofthe elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), theverdict is not against the weight of the evidence (see generally Bleakley, 69NY2d at 495). In contrast to the People's witnesses, defendant testified that he met withthe CI to sell him a laptop computer and, although he admitted that he had a prescriptionfor oxycodone pills, he denied that he sold any to the CI. Defendant explained that hehad served eviction papers on the CI several months before and thus that the CI had amotive to lie about the purpose [*2]of their meeting.There is no basis to conclude that the jury failed to give the conflicting evidence theweight it should be accorded (see id.). The sentence is not unduly harsh andsevere. Present—Scudder, P.J., Peradotto, Lindley, Sconiers and Valentino,JJ.