People v. Niven

135 A.D.2d 1088, 523 N.Y.S.2d 306, 1987 N.Y. App. Div. LEXIS 52944

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 1987
• Status: Published

Opinion

— Judgment unanimously affirmed. Memorandum: On appeal from a conviction for second degree criminal sale and possession of a controlled substance, defendant claims that the People failed to prove he knowingly possessed and sold lysergic acid diethylamide (LSD) to an undercover police officer because his testimony showed that he intended to sell mescaline. There is no merit to this claim. Defendant’s reliance upon People v Tramuta (109 AD2d 765) is misplaced. There, the only drug discussed between the seller and the undercover officers was mescaline and it was mescaline that was sold. In the instant case, defendant had sold LSD to undercover agents a number of times and the police testified that LSD was the only drug discussed before the sale. Viewing the evidence in the light most favorable to the People, as we are required to do in cases of this type (People v Contes, 60 NY2d 620, 621), we conclude that the evidence adduced at trial established that defendant knowingly possessed and sold LSD. We have reviewed the other claims of error and find them to be without merit. (Appeal from judgment of Monroe County Court, Marks, J. — criminal possession of controlled substance, second degree, and another offense.) Present — Dillon, P. J., Doerr, Boomer, Green and Davis, JJ.