People v. Carson

4 A.D.3d 805, 771 N.Y.S.2d 775, 2004 N.Y. App. Div. LEXIS 1574

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 2004
• Status: Published

Opinion

Appeal from a judgment of the Niagara County Court (Amy J. Fricano, J.), rendered February 18, 2000. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the fourth degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him after a jury trial of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09 [1]). Defendant was acquitted of criminal possession of a controlled substance in the third degree (§ 220.16 [1] [possession with intent to sell]). Defendant contends that County Court erred in allowing a prosecution witness to testify regarding a prior drug sale. We disagree. That testimony was properly admitted to establish that defendant possessed cocaine with the intent to sell it (see People v Hernandez, 71 NY2d 233, 245-246 [1987]; People v Maddox, 272 AD2d 884, 884-885 [2000], lv denied 95 NY2d 867; [2000] People v Moody, 229 AD2d 936 [1996], lv denied 89 ) [1996]. The probative value of that testimony outweighed any prejudice to defendant (see Maddox, 272 AD2d at 885; Moody, 229 AD2d at 937; People v Matos, 190 AD2d 819 [1993], lv denied 81 NY2d 973 [1993]), and “any prejudice to defendant was minimized by [the court’s] limiting instructions” (Maddox, 272 AD2d at 885; see People v Dais, 222 AD2d 1045, 1046 [1995], lv denied 91 NY2d 890 [1998]). The verdict is not against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Miley, 306 AD2d 164, 165 [2003], lv denied 100 NY2d 623 [2003]; People v Rodriguez, 259 AD2d 571 [1999]), and the sentence is neither unduly harsh nor severe. Present—Wisner, J.P., Hurlbutt, Scudder, Kehoe and Hayes, JJ.