People v. Morales

300 A.D.2d 148, 750 N.Y.S.2d 855, 2002 N.Y. App. Div. LEXIS 12478

Opinion

—Judgment, Supreme Court, Bronx County (Peter Benitez, J.), rendered May 24, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 7Vs to 15 years and 4Vs to 9 years, respectively, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence on the third degree sale conviction to a term of 6 to 12 years, and otherwise affirmed.

Defendant’s claim that the court should have given a limiting instruction to accompany the testimony of the police witness concerning the roles of various participants in street-level

drug sales is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that although such an instruction should have been provided (People v Brown, 97 NY2d 500, 506), the error was harmless (see People v Crimmins, 36 NY2d 230).

Contrary to defendant’s argument, the verdict on the possession charge was based on legally sufficient evidence and was not against the weight of the evidence. Defendant’s intent to sell the drugs found on his person could be reasonably inferred from the circumstances, including the fact that defendant had just sold drugs to the undercover officer (see People v Roman, 283 AD2d 252, lv denied 96 NY2d 906; People v Banks, 264 AD2d 667, lv denied 94 NY2d 819).

We find the sentence excessive to the extent indicated. Concur — Williams, P.J., Andrias, Buckley, Lerner and Gonzalez, JJ.