People v. Burgos

192 A.D.2d 472, 596 N.Y.S.2d 418, 1993 N.Y. App. Div. LEXIS 4348

Opinion

—Judgment, Supreme Court, New York County (Harold Rothwax, J., at suppression hearing; Daniel FitzGerald, J., at trial), convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him as a second felony offender, to concurrent terms of 8 to 16 years, unanimously affirmed.

Arrested in a "buy and bust” operation for selling heroin to an undercover officer in exchange for $20 in prerecorded "buy money”, the police recovered from defendant additional glassines of heroin bearing the same logo as those he sold to the undercover officer, the buy money, and another $431. There is no merit to defendant’s argument that the introduction of this $431 served to inflame the jury and divert its attention by portraying him as a large-scale drug dealer. Defendant’s possession of a substantial amount of cash was probative of his possession of drugs with intent to sell (People v Tavares, 174 AD2d 493, 494), and the trial court, noting the difficulty of establishing such intent, properly weighed the probative value of the evidence against its potential for prejudice. Nor do we find that the court abused its discretion in sentencing. Concur —Carro, J. P., Wallach, Asch and Rubin, JJ.