People v. Moultrie

Appellate Division of the Supreme Court of New York

People v. Moultrie

267 A.D.2d 181, 700 N.Y.S.2d 815, 1999 N.Y. App. Div. LEXIS 13406

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 28, 1999

StatusPublished

Cited by3 cases

This text of 267 A.D.2d 181 (People v. Moultrie) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Moultrie, 267 A.D.2d 181, 700 N.Y.S.2d 815, 1999 N.Y. App. Div. LEXIS 13406 (N.Y. Ct. App. 1999).

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Opinion

—Judgment, Supreme Court, New York County (Ira Beal, J.), rendered April 9, 1998, 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 4V2 to 9 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Issues of credibility were properly presented to the jury and we find no reason to disturb its determination.

Defendant failed to make a prima facie showing that the second “ghost” officer was in a position to hear the conversations or observe the events that were in dispute with respect to defendant’s agency defense. Therefore, defendant was not entitled to a missing witness charge based on the prosecution’s failure to call the officer as a witness (see, People v Kitching, 78 NY2d 532, 537).

Defendant’s remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. Concur — Sullivan, J. P., Nardelli, Rubin, Andrias and Friedman, JJ.

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—Judgment, Supreme Court, New York County (Ira Beal, J.), rendered April 9, 1998, 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 4V2 to 9 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Issues of credibility were properly presented to the jury and we find no reason to disturb its determination.

Defendant failed to make a prima facie showing that the second “ghost” officer was in a position to hear the conversations or observe the events that were in dispute with respect to defendant’s agency defense. Therefore, defendant was not entitled to a missing witness charge based on the prosecution’s failure to call the officer as a witness (see, People v Kitching, 78 NY2d 532, 537).

Defendant’s remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. Concur — Sullivan, J. P., Nardelli, Rubin, Andrias and Friedman, JJ.

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Bluebook (online)

267 A.D.2d 181, 700 N.Y.S.2d 815, 1999 N.Y. App. Div. LEXIS 13406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-moultrie-nyappdiv-1999.

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