People v. James

251 A.D.2d 208, 674 N.Y.S.2d 653

Opinion

—Judgment, Supreme Court, New York County (Patricia Williams, J.), rendered June 17, 1996, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing her, as a second felony offender, to a term of 2 to 4 years, and order, same court and Justice, entered June 17, 1996, unanimously modified, on the law, to vacate the sentence and remand the matter for resentencing, and otherwise affirmed.

Contrary to the finding of the sentencing court, defendant was clearly an active participant in the sale of crack-cocaine to the undercover officer. Moreover, in considering defendant’s character and the threat she poses to society, as reflected by her past criminal record, the imposition of the mandatory minimum sentence in this case would not have been unconstitutional (see, People v Thompson, 83 NY2d 477, 480; People v Broadie, 37 NY2d 100, cert denied 423 US 950).

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490). Defendant’s actions in leaning within a foot of the undercover as he crouched down to pick up two of the glassines of crack that were neatly arranged on the sidewalk, directing him to take “only two”, the exact amount he purchased, and nodding her approval upon seeing that he had only taken that amount were ample evidence from which the jury could reasonably infer defendant’s intentional participation in the sale as the overseer of the supply of drugs.

Defendant’s remaining contention is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find it to be without merit. Concur — Sullivan, J. P., Rosenberger, Wallach, Tom and Saxe, JJ.