People v. Nesbitt

198 A.D.2d 33, 603 N.Y.S.2d 121

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 4, 1993
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Richard T. Andrias, J.), rendered November 20, 1991, convicting defendant, after 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 4 Vi to 9 years, unanimously affirmed.

The trial court did not abuse its discretion in denying defendant’s motion for severance. Rather, the trial court properly found that the core of the defense offered by defendant and codefendant Sanchez, respectively, was similar, i.e., each testified that he was present at the scene to purchase narcotics, not to sell them (see, People v Mahboubian, 74 NY2d 174, 184). Additionally, although codefendant Sanchez’ testimony that defendant directed him to an apartment where drugs could be purchased was contrary to defendant’s testimony that codefendant Sanchez was already in the apartment when defendant and the undercover officer arrived to purchase drugs and that Sanchez had participated in an exchange of money with defendant, it was consistent with the undercover officer’s testimony that defendant had acted as a steerer. Thus, there was no significant danger that codefendant Sanchez’ conflicting testimony, by itself, would lead the jury to convict defendant (supra). Concur — Sullivan, J. P., Rosenberger, Ellerin and Wallach, JJ.