People v. Davis

Appellate Division of the Supreme Court of New York

People v. Davis

208 A.D.2d 989, 617 N.Y.S.2d 220, 1994 N.Y. App. Div. LEXIS 9647

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 13, 1994

StatusPublished

Cited by4 cases

This text of 208 A.D.2d 989 (People v. Davis) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Davis, 208 A.D.2d 989, 617 N.Y.S.2d 220, 1994 N.Y. App. Div. LEXIS 9647 (N.Y. Ct. App. 1994).

Pincite

Opinion

Mercure, J.

Appeal from a judgment of the County Court of Sullivan County (Kane, J.), rendered February 5, 1993, upon a verdict convicting defendant of two counts of the crime of criminal sale of a controlled substance in the third degree.

Ralph Potts, an undercover State Trooper, purchased narcotics from defendant in an apartment in the Village of Monticello, Sullivan County, on March 20, 1992 and April 8, 1992. Convicted after trial of two counts of criminal sale of a controlled substance in the third degree and sentenced to concurrent 4 to 12-year prison terms, defendant appeals. We affirm.

Initially, in view of Potts’ testimony that he made two face-to-face drug purchases from defendant, under good lighting conditions and with a clear opportunity to view defendant from a close proximity, we conclude that the verdict was not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). Defendant’s contrary proof merely created a credibility issue for the jury’s determination (see, e.g., People v Garcia, 194 AD2d 1011, 1013, lv denied 82 NY2d 895), and we perceive no reason to disturb its weighing of the evidence. Next, the People were entitled to read the indictment during their opening statement (see, People v Moore, 71 NY2d 684, 688; People v Reilly, 49 App Div 218, 221, affd 164 NY 600). Moreover, County Court properly instructed the jury that the indictment was merely an accusation and not evidence of guilt (cf., People v Abreu, 74 AD2d 876, 877). Nor are we persuaded that County Court’s refusal to give an extended identification charge prejudiced defendant (see, People v Crabb, 204 AD2d 239). In our view, the charge given by County Court properly [990]*990conveyed that the People had to prove identification beyond a reasonable doubt and urged the jury to consider the witness’s credibility and opportunity to observe defendant and the overall circumstances surrounding the identification (see, People v Whalen, 59 NY2d 273).

Defendant’s remaining contentions have been considered and found to lack merit or have not been preserved for appeal (see, CPL 470.05 [2]).

Mikoll, J. P., Yesawich Jr. and Peters, JJ., concur. Ordered that the judgment is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Mercure, J.

Appeal from a judgment of the County Court of Sullivan County (Kane, J.), rendered February 5, 1993, upon a verdict convicting defendant of two counts of the crime of criminal sale of a controlled substance in the third degree.

Ralph Potts, an undercover State Trooper, purchased narcotics from defendant in an apartment in the Village of Monticello, Sullivan County, on March 20, 1992 and April 8, 1992. Convicted after trial of two counts of criminal sale of a controlled substance in the third degree and sentenced to concurrent 4 to 12-year prison terms, defendant appeals. We affirm.

Initially, in view of Potts’ testimony that he made two face-to-face drug purchases from defendant, under good lighting conditions and with a clear opportunity to view defendant from a close proximity, we conclude that the verdict was not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). Defendant’s contrary proof merely created a credibility issue for the jury’s determination (see, e.g., People v Garcia, 194 AD2d 1011, 1013, lv denied 82 NY2d 895), and we perceive no reason to disturb its weighing of the evidence. Next, the People were entitled to read the indictment during their opening statement (see, People v Moore, 71 NY2d 684, 688; People v Reilly, 49 App Div 218, 221, affd 164 NY 600). Moreover, County Court properly instructed the jury that the indictment was merely an accusation and not evidence of guilt (cf., People v Abreu, 74 AD2d 876, 877). Nor are we persuaded that County Court’s refusal to give an extended identification charge prejudiced defendant (see, People v Crabb, 204 AD2d 239). In our view, the charge given by County Court properly [990]*990conveyed that the People had to prove identification beyond a reasonable doubt and urged the jury to consider the witness’s credibility and opportunity to observe defendant and the overall circumstances surrounding the identification (see, People v Whalen, 59 NY2d 273).

Defendant’s remaining contentions have been considered and found to lack merit or have not been preserved for appeal (see, CPL 470.05 [2]).

Mikoll, J. P., Yesawich Jr. and Peters, JJ., concur. Ordered that the judgment is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

208 A.D.2d 989, 617 N.Y.S.2d 220, 1994 N.Y. App. Div. LEXIS 9647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-davis-nyappdiv-1994.

Opinion

Related

Cite This Page — Counsel Stack