People v. Nicholas

148 A.D.2d 474, 538 N.Y.S.2d 1013, 1989 N.Y. App. Div. LEXIS 2400

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 6, 1989
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County (Kramer, J.), rendered February 25, 1987, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The record falls to support the defendant’s contention that the undercover police officer, who identified him in court as 1 of 3 men who had sold him cocaine, examined arrest photographs of the defendant while he testified. Police Officer Thomas testified that he had consulted the arrest photographs at the precinct that morning, just prior to coming to court, to refresh his recollection, but that he did not view any photographs while testifying. Apparently, defense counsel accepted that testimony because in his summation no reference was made thereto, but only to the fact that Thomas had viewed the photographs prior to arriving at the courthouse to testify.

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. Moreover upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15 [5]).

Furthermore, the sentence imposed by the court was not excessive (see, People v Suitte, 90 AD2d 80).

We have reviewed the appellant’s remaining contentions and conclude that they are without merit. Mangano, J. P., Lawrence, Sullivan and Kooper, JJ., concur.