People v. Gray

212 A.D.2d 975, 623 N.Y.S.2d 441, 1995 N.Y. App. Div. LEXIS 1831

Opinion

—Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of one count each of criminal sale and criminal possession of a controlled substance in the third degree, defendant contends that the verdict is against the weight of the evidence because an investigator who identified defendant failed to note the existence of defendant’s facial scar. The only proof that defendant had that scar on the date of the transaction was the testimony to that effect by defense witnesses. We conclude that, even if the jury credited that testimony, the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). The investigator testified that he had a clear view of defendant under good lighting conditions over a period of 10 to 15 minutes. He further testified that defendant was wearing a military fatigue jacket with a flared collar that may have obscured the sides of defendant’s face but did not prevent the investigator from viewing the front of defendant’s face. (Appeal from Judgment of Supreme Court, Erie County, Doyle, J.—Criminal Sale Controlled Substance, 3rd Degree.) Present—Pine, J. P., Fallon, Wesley, Callahan and Davis, JJ.