People v. Gibbs

207 A.D.2d 288, 615 N.Y.S.2d 394, 1994 N.Y. App. Div. LEXIS 8369

Opinions

—Judgment, Supreme Court, New York County (Richard B. Lowe, III, J.), rendered June 8, 1992, convicting defendant, after jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 5 to 15 years, affirmed.

Upon an independent review of the facts, we find that the verdict was not against the weight of the evidence, which included the testimony of the undercover officer that defendant sold him cocaine and that he identified defendant at the precinct shortly after his arrest; the testimony of the arresting officer that defendant matched the description transmitted by the undercover officer; and the fact that defendant was arrested with $5 of the $15 in prerecorded money given to him by the undercover officer. It was not unreasonable for the jury to discredit defendant’s account of how he came into possession of the prerecorded money. Concerning the People’s failure to preserve the cocaine, we find that the permissive adverse inference charge given by the court was an appropriate exercise of discretion under the circumstances (see, People v Martinez, 71 NY2d 937). Concur—Kupferman, Williams and Tom, JJ.