People v. Gaviria

148 A.D.2d 630, 539 N.Y.S.2d 91, 1989 N.Y. App. Div. LEXIS 3924

Opinion

Appeal by the defendant from a judgment of the County Court, Nassau County (Ain, J.), rendered April 28, 1987, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence adduced at trial in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15 [5]).

Contrary to the defendant’s assertions, we do not find that the jury’s verdict was repugnant. Inasmuch as possession is not a necessary element of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]), the jury’s acquittal of the defendant of the charge of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]) does not render infirm his conviction on the sale count (see, People v Campbell, 86 AD2d 403).

We have examined the defendant’s remaining contentions, including his claim that his sentence was excessive, and find them to be without merit. Brown, J. P., Eiber, Hooper and Balletta, JJ., concur.