People v. Almodovar

216 A.D.2d 205, 628 N.Y.S.2d 482, 1995 N.Y. App. Div. LEXIS 6964

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 27, 1995
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Edward Davidowitz, J.), rendered October 21, 1993, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 51/2 to 11 years, unanimously affirmed.

CPL 210.30 (6) precludes review of defendant’s claim that his pretrial motion to dismiss the possession counts of the indictment should have been granted, the ensuing judgment of conviction being based upon legally sufficient evidence (People v Wilkins, 68 NY2d 269, 277, n 7). Nor is there merit to defendant’s unpreserved claim that he was prejudiced by the jury having heard testimony intended to prove the possession counts, which were dismissed as legally insufficient at the close of evidence, since the jury was instructed to disregard any evidence it heard relating to the dismissed counts, instructions that it is presumed to have followed (People v Davis, 58 NY2d 1102,1104). Also unpreserved, and without merit, is defendant’s other claim that it was error to admit limited background information concerning street level transactions (see, People v Kelsey, 194 AD2d 248). Concur—Sullivan, J. P., Rosenberger, Kupferman, Ross and Williams, JJ.