| People v Peterkin |
| 2018 NY Slip Op 01681 [159 AD3d 1196] |
| March 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Joseph A.Peterkin Jr., Appellant. |
Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), for appellant.
Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered February 19, 2016, upon a verdict convicting defendant of the crimes ofcriminal sale of a controlled substance in the third degree (three counts) and criminal possessionof a controlled substance in the third degree (three counts).
After a confidential informant (hereinafter CI) cooperated with police to conduct threecontrolled buys of crack cocaine from defendant, defendant was charged with three counts eachof criminal sale of a controlled substance in the third degree and criminal possession of acontrolled substance in the third degree. A jury convicted him of all counts. Defendantappeals.
The CI's testimony, if believed, established that he purchased crack cocaine from defendanton three different occasions. Defendant argues that the verdict is against the weight of theevidence because the only evidence linking him to the crimes is the testimony of the CI and,according to defendant, the CI is "inherently unreliable" because he has an extensive criminalrecord and history of dishonesty, received favors for his testimony, and his testimony wasinternally inconsistent and inconsistent with the testimony of several police officers. "Where, ashere, an acquittal would not have been unreasonable, our weight of the evidence review requiresus to view the evidence in a neutral light and 'weigh the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony' " (People vWright, 155 AD3d 1452, 1453 [2017], quoting People v Bleakley, 69 NY2d490, 495 [1987]). Many, if not most, CIs [*2]have criminalrecords and receive favorable treatment for their efforts on behalf of the police. Thesecircumstances do not render a CI's testimony incredible as a matter of law but, rather, are factorsto be considered by the jury when determining whether the witness's testimony should bebelieved, in whole or in part (see Peoplev Miles, 61 AD3d 1118, 1119 [2009], lv denied 12 NY3d 918 [2009]; People v Holliman, 12 AD3d 773,775 [2004], lv denied 4 NY3d 764 [2005], lv denied upon reconsideration 4NY3d 831 [2005]).
Although none of the police officers saw defendant on these three occasions or observed anytransactions (because one occurred inside defendant's apartment and the other two occurredoutdoors at night), police officers searched the CI prior to the buys, observed the CI in the area ofthe buys, continuously monitored the CI over an audio transmitter, heard him converse withanother male on each occasion and testified that the CI returned without the buy money but witha substance that was confirmed as cocaine and packaged the same way each time. This evidencetended to corroborate the CI's testimony. The CI was extensively questioned and subjected tocross-examination about his prior criminal convictions, that he cooperated with police inexchange for not being charged with aggravated unlicensed operation of a motor vehicle and thedetails surrounding each of the three controlled buys (see People v Wynn, 149 AD3d 1252, 1254-1255 [2017], lvdenied 29 NY3d 1136 [2017]; People v Holliman, 12 AD3d at 775). Despite some ofthe CI's testimony being inconsistent with some of his other testimony and that of the policeofficers, "the jury had ample opportunity to assess [the CI's] testimony and credibility"(People v Holliman, 12 AD3d at 775; see People v Wright, 155 AD3d at 1454;People v Wynn, 149 AD3d at 1254-1255). "Giving deference to the jury's determinationto accept the informant's testimony as credible, we cannot say that the verdict [is] against theweight of the evidence" (People vCarter, 57 AD3d 1017, 1018 [2008] [citations omitted], lv denied 12 NY3d 781[2009]; see People v Rose, 79 AD3d1365, 1367 [2010]; People vLawal, 73 AD3d 1287, 1289 [2010]).
Lynch, Devine, Clark and Rumsey, JJ., concur. Ordered that the judgment is affirmed.