| People v Torres |
| 2017 NY Slip Op 00218 [146 AD3d 1086] |
| January 12, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJoel J. Torres, Appellant. |
Sandra M. Colatosti, Albany, for appellant.
Kelli P. McCoski, District Attorney, Fonda (Pamela A. Ladd of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Montgomery County(Catena, J.), rendered February 23, 2015, upon a verdict convicting defendant of thecrimes of criminal sale of a controlled substance in the third degree and criminalpossession of a controlled substance in the third degree.
In December 2013, members of the City of Amsterdam Police Department conducteda controlled buy in which a confidential informant (hereinafter CI) purchased narcoticsfrom defendant. Defendant was charged in a multi-count indictment with various crimesand, after a jury trial, defendant was convicted of one count of criminal sale of acontrolled substance in the third degree and one count of criminal possession of acontrolled substance in the third degree. County Court thereafter sentenced defendant toconcurrent prison terms of seven years, followed by three years of postreleasesupervision. Defendant appeals. We affirm.
Defendant first argues that his convictions are not supported by legally sufficientevidence. Criminal sale of a controlled substance in the third degree requires that thePeople prove that defendant knowingly and unlawfully sold a narcotic drug (seePenal Law § 220.39 [1]). Criminal possession of a controlled substance inthe third degree requires that the People prove that defendant knowingly and unlawfullypossessed a narcotic drug with the intent to sell it (see Penal Law§ 220.16 [1]).
[*2] The trialtestimony established that the CI was strip-searched prior to the controlled buy to ensurethat he was not concealing any contraband, drugs or currency. The detectives gave the CImarked money for the controlled buy and equipped him with a wire. The detectivesobserved the CI approach the location for the subject transaction, and one detectivetestified that she witnessed the CI and defendant meet on the street and that she saw them"exchange hands." Defendant subsequently went inside a building and the CI walkedaway. The detectives continued their surveillance of the CI and watched him make noother stops as he returned to their vehicle. The CI turned over two glassine envelopes tothe detectives.[FN*]Upon their return to the police station, a strip search of the CI revealed nothing on hisbody. Based on the foregoing, we disagree with defendant that the verdict was basedupon legally insufficient evidence (see People v Wilson, 100 AD3d 1045, 1046 [2012], lvdenied 22 NY3d 998 [2013]; People v Darby, 72 AD3d 1280, 1281-1282 [2010], lvdenied 15 NY3d 749 [2010]; People v Chatham, 55 AD3d 1045, 1046 [2008], lvdenied 14 NY3d 839 [2010]; People v Stephens, 31 AD3d 890, 891 [2006], lvdenied 7 NY3d 870 [2006]).
Additionally, we are unpersuaded by defendant's contention that the verdict wasagainst the weight of the evidence. While the detective who witnessed the subjecttransaction did not see what was physically exchanged between the two of them, the CItestified that, after he asked defendant whether he had "crack," "[h]e said yes. He gaveme the crack. I gave him the money, and I walked back to the [o]fficer." Furthermore,even though the CI did not identify defendant as the seller, the detective who witnessedthe exchange between the CI and defendant positively identified defendant at trial as theseller. As such, viewing the evidence in a neutral light, we conclude that the weight ofthe evidence supported the jury's verdict (see People v Scott, 129 AD3d 1306, 1307 [2015], lvdenied 26 NY3d 1092 [2015]; People v Nichol, 121 AD3d 1174, 1177-1178 [2014], lvdenied 25 NY3d 1205 [2015]; People v Jones, 101 AD3d 1241, 1241-1242 [2012], lvdenied 21 NY3d 944 [2013]; People v Miles, 61 AD3d 1118, 1119-1120 [2009], lvdenied 12 NY3d 918 [2009]).
Turning to defendant's chain of custody argument, while defendant stipulated to aproper chain of custody once the narcotics were given to the detectives after thecontrolled buy, he nonetheless contends that gaps in the chain of custody existed prior tothat point and, therefore, the narcotics were erroneously admitted into evidence. Wedisagree. "Gaps in the chain of custody may be excused when circumstances providereasonable assurances of the identity and unchanged condition of the evidence" (People v Hawkins, 11 NY3d484, 494 [2008] [citation omitted]). In view of the testimony of the CI and thedetectives, who strip-searched the CI before and after the controlled buy and constantlyobserved him as he approached the controlled buy, interacted with defendant andthereafter return to the detectives (see People v Green, 90 AD3d 1151, 1154 [2011], lvdenied 18 NY3d 994 [2012]; People v Long, 9 AD3d 495, 497-498 [2004]), andinasmuch as defendant does not claim that the evidence was tampered with (seePeople v Wilkerson, 167 AD2d 662, 664 [1990], lv denied 78 NY2d 958[1991]), we conclude that the People provided the necessary reasonable assurances as toidentity and unchanged condition of the narcotics. Moreover, any gaps in the chain ofcustody go to the weight of the evidence and not its admissibility (see People vHawkins, 11 NY3d at 494; People v Rolle, 72 AD3d 1393, 1396 [2010], lvdenied 16 NY3d 745 [2011]). Defendant's remaining contention has been examinedand is found to be without merit.
McCarthy, J.P., Lynch, Rose and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:The parties stipulatedthat the contents in the glassine envelopes were narcotics.