People v. Milan

215 A.D.2d 239, 626 N.Y.S.2d 189, 1995 N.Y. App. Div. LEXIS 5193

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 16, 1995
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Dominic Massaro, J.), rendered August 28, 1989, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 8 to 16 years, unanimously modified to reduce the sentence to 5 to 10 years and otherwise affirmed.

There was sufficient evidence to enable the hearing court to make an independent determination regarding the existence of probable cause, despite the responding officer’s failure to explicitly describe the kind of clothing worn by defendant at the time of his arrest, or to state that defendant matched the description provided by the undercover officer, because the officer specified the description and location provided by the undercover officer, and indicated that when he entered the building lobby within two minutes of the transmission, he found several people there but detained only this defendant (People v Nieves, 213 AD2d 182).

Since defendant did not object to the supplemental reasonable doubt instructions provided by the court, his contention that he was not provided with either notice of the jury’s note or an opportunity to help formulate the court’s response is unpreserved (People v Stewart, 81 NY2d 877, 878-879), and we decline to review it in the interest of justice. Nor is appellate review possible in light of defendant’s failure to provide an adequate record (People v Clariot, 188 AD2d 281, 282, Iv denied 81 NY2d 838). We find the sentence excessive to the extent indicated. Concur—Rosenberger, J. P., Wallach, Rubin, Kupferman and Asch, JJ.