People v. Morales

234 A.D.2d 568, 651 N.Y.S.2d 919, 1996 N.Y. App. Div. LEXIS 13199

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vaughan, J.), rendered December 15, 1994, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. Justice Ritter has been substituted for the late Justice Hart (see, 22 NYCRR 670.1 [c]).

Ordered that the judgment is affirmed.

The defendant’s conviction was based upon evidence that he sold two bags of cocaine to an undercover police officer for $10 during a "buy and bust” operation. Within minutes of the sale, the defendant was arrested by the field team at the location where the transaction took place and the identity of the defendant as the seller was confirmed by the undercover officer during a drive-by identification. During a search of the defendant, $10 of pre-recorded buy money was recovered. No drugs were found on the defendant.

The issue of the legal sufficiency of the evidence is unpreserved for appellate review (see, CPL 470.05 [2]). In any event, viewing the evidence 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 beyond a reasonable doubt despite the fact that no drugs were found on his person (see, e.g., People v Tomlinson, 199 AD2d 352; People v Johnson, 187 AD2d 404; People v Rivera, 178 AD2d 620).

Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]). Miller, J. P., Ritter, Altman and Goldstein, JJ., concur.