| People v Van Hoesen |
| 2016 NY Slip Op 08255 [145 AD3d 1183] |
| December 8, 2016 |
| Appellate Division, Third Department |
[*1](December 8, 2016)
| The People of the State of New York, Respondent, vJoshua Van Hoesen, Appellant. |
Eric K. Schillinger, East Greenbush, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Albany County (Lynch,J.), rendered March 15, 2013, convicting defendant following a nonjury trial of the crimeof criminal sale of a controlled substance in the third degree.
Defendant was indicted and charged with criminal sale of a controlled substance inthe third degree stemming from his sale of crack cocaine to a confidential informant(hereinafter CI). Following a nonjury trial, defendant was found guilty as charged.County Court thereafter denied defendant's CPL 330.30 (1) motion to set aside theverdict and sentenced defendant, as a second felony offender, to a prison term of threeyears, to be followed by three years of postrelease supervision. Defendantappeals.[FN*] Weaffirm.
Defendant contends that there was legally insufficient evidence to support hisconviction because the CI was an accomplice whose testimony was not corroborated. Forthis same reason, defendant argues that his CPL 330.30 (1) motion to set aside the verdictwas improperly denied. We disagree. "An informant acting as an agent of the policewithout the intent to commit a crime is not an accomplice whose testimony requirescorroboration" (People vThaddies, 50 AD3d 1249, 1249 [2008] [internal quotation marks and citationsomitted], lv denied 10 NY3d 965 [2008]). Furthermore, the police detectives'testimony concerning their observations of the controlled buy and the cocaine sold to theCI by defendant, which the CI turned over to the police, sufficiently corroborated the CI'stestimony (see People vMatthews, 101 AD3d 1363, 1365-1366 [2012], lv denied 20 NY3d 1101[2013]; People v Kennedy,78 AD3d 1233, 1236-1237 [2010], lv denied 16 NY3d 896 [2011]). Eventhough the police detectives did not see the actual transaction take place between the CIand defendant, "corroborative evidence need only tend to connect the defendant with thecommission of the crime in such a way as may reasonably satisfy the [trier of fact] thatthe accomplice is telling the truth" (People v Rodriguez, 121 AD3d 1435, 1439 [2014][internal quotation marks, brackets and citations omitted], lv denied 24 NY3d1122 [2015]). Accordingly, we find that legally sufficient evidence exists to support theconviction and that defendant's CPL 330.30 motion was properly denied.
We also disagree with defendant's contention that County Court erred in granting thePeople's pretrial motion to amend the indictment to change the location of the chargedcrime from a residential building to the laundromat located approximately one blockaway. This change in location did not alter the People's theory of the case nor diddefendant suffer any prejudice by it. We therefore find no error in allowing theamendment (see People vHawkins, 130 AD3d 1298, 1302 [2015], lv denied 26 NY3d 968 [2015];People v Cruz, 61 AD3d1111, 1112 [2009]; People v Clapper, 123 AD2d 484, 485 [1986], lvdenied 69 NY2d 825 [1987]).
Peters, P.J., Garry, Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Although defendant'snotice of appeal sets forth the incorrect date of the judgment of conviction, we exerciseour discretion to overlook this inaccuracy and treat the notice of appeal as valid(see CPL 460.10 [6]).