People v. Birch

69 A.D.3d 425, 893 N.Y.2d 30

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 7, 2010
• Status: Published

Opinion

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury’s determinations concerning credibility. The evidence provided a satisfactory explanation for the fact that two officers made different observations, and defendant’s arguments to the contrary are without merit.

The court properly exercised its discretion in admitting evidence that, earlier in the evening of the charged sale, the observing officer saw defendant make what appeared to be a drug sale to an unapprehended buyer. This evidence completed the narrative and its probative value outweighed its prejudicial effect (see e.g. People v Urena, 306 AD2d 137 [2003], lv denied 100 NY2d 625 [2003]). While the court should have provided a limiting instruction regarding the uncharged crime, we find, to the extent the claim is preserved, that any error is harmless.

We perceive no basis for reducing the sentence. Concur— Mazzarelli, J.E, Friedman, Nardelli, Renwick and Román, JJ.