| People v Albert |
| 2015 NY Slip Op 05349 [129 AD3d 1652] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDonta Albert, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Romana A. Lavalas of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Donald E. Todd, A.J.),rendered May 8, 2012. The judgment convicted defendant, upon a jury verdict, ofcriminal sale of a controlled 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 following a jurytrial of criminal sale of a controlled substance in the third degree (Penal Law§ 220.39 [1]). Viewing the evidence in light of the elements of the crime ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that theverdict is against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]). Two police officers testified at trial that they were on routinepatrol in Syracuse when they observed defendant, whom they knew well from priordealings, engage in what appeared to be a hand-to-hand drug transaction with anotherperson. Following the transaction, defendant walked away from the scene, and theofficers stopped the other person, who readily admitted that he had just purchased crackcocaine. The buyer said that the man who sold him cocaine gave him a telephone numberto call if he needed more drugs. The officers wrote down that number and looked fordefendant, who could not immediately be found. When one of the officers arresteddefendant five days later, the officer dialed the number given to him by the drugpurchaser, and a cell phone in defendant's possession began to ring. The officer endedthe call and dialed the number a second time, and the phone rang again. At trial, bothofficers identified defendant at trial as the person they saw engage in the hand-to-handtransaction. Based on our independent review of the record, we conclude that, evenassuming, arguendo, that a different verdict would not have been unreasonable, it cannotbe said that the jurors failed to give the evidence the weight it should be accorded (see People v Ohse, 114 AD3d1285, 1286-1287 [2014], lv denied 23 NY3d 1041 [2014]; see generallyBleakley, 69 NY2d at 495).
Defendant failed to preserve for our review his contention that County Court erred inallowing the police witnesses to testify that defendant's neighborhood, where the drugtransaction took place, had high levels of criminal activity, and that the police regularlypatrolled the area upon the request of the management of a nearby apartment complex(see CPL 470.05 [2]; People v Permant, 268 AD2d 230, 230 [2000],lv denied 94 NY2d 905 [2000]). In any event, the court properly allowed thattestimony because it tended to explain the presence and conduct of the police (see People v Leak, 66 AD3d403, 404 [2009], lv denied 14 NY3d 802 [2010]; People v Grzebyk,253 AD2d 469, 469 [1998], lv denied 92 NY2d 925 [1998]). Finally, weconclude that the sentence is not unduly harsh or severe. Present—Scudder, P.J.,Centra, Peradotto, Lindley and Whalen, JJ.