People v. Gaither

256 A.D.2d 6, 680 N.Y.S.2d 516, 1998 N.Y. App. Div. LEXIS 12781

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 1, 1998
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Richard Carruthers, J.), rendered July 22, 1996, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the fourth degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (People v Bleakley, 69 NY2d 490, 495). There was ample evidence from which the jury could infer that defendant, in exchange for money, permitted the buyer in this observation sale to pour methadone from defendant’s bottle into the buyer’s own bottle. Although the buyer had his back turned to the police witness and she therefore did not directly see the liquid being poured from defendant’s bottle into the other container, the police witness saw defendant hand his bottle to the buyer, who opened it, took an unseen object out of his right jacket pocket, and held his left arm in a position suggesting he was pouring out the contents of defendant’s bottle. The police witness’s observation that no liquid was pouring on the ground supported the inference that the buyer was pouring liquid from defendant’s bottle into a container of his own, and bottles containing methadone were subsequently recovered from both defendant and the buyer. We see no reason to disturb the jury’s findings concerning credibility. We have considered and rejected defendant’s other contentions. Concur — Milonas, J. P., Ellerin, Rubin and Mazzarelli, JJ.