People v. Alvarado

228 A.D.2d 168, 644 N.Y.2d 703, 644 N.Y.S.2d 703, 1996 N.Y. App. Div. LEXIS 6280

Opinion

Defendant’s guilt of the first-degree sale charge was proven by legally sufficient evidence that he offered to sell the undercover officer a kilogram of cocaine, that he gave the undercover officer a packet containing 28.4 grams of cocaine and promised to deliver the remainder of the kilo that he had offered upon receipt of full payment, and that the cocaine in the packet was 94% pure, a level of purity that normally is present only in kilograms of cocaine and not in smaller quantities sold on the street. Proof of an offer can establish a sale, provided the weight of the material is independently shown (People v George, 67 NY2d 817, 819). Viewing the evidence in a light most favorable to the prosecution, such an independent showing was made by the proof that the purity of the sample indicated that it came directly from a kilogram. Nor was the verdict against the weight of the evidence. Defendant’s claim that he was ignorant of narcotics trafficking, and actually intended to defraud the undercover officer of the buy money by absconding with it without ever delivering the promised kilo, raised issues of credibility that were properly placed before the jury, and we see no reason to disturb its determination. We have considered defendant’s remaining arguments and find them to be without merit. Concur—Rosenberger, J. P., Wallach, Kupferman, Williams and Mazzarelli, JJ.