People v. Oliver

14 A.D.3d 437, 787 N.Y.S.2d 874, 2005 N.Y. App. Div. LEXIS 487

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 25, 2005
• Status: Published

Opinion

Judgment Supreme Court, Bronx County (Peter J. Benitez, J.), rendered September 23, 2003, 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 6 to 12 years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.

The verdict was not against the weight of the evidence. Issues of credibility and identification, including the weight to be given to inconsistencies in the testimony, were properly considered by the jury and there is no basis for disturbing its determinations (People v Bleakley, 69 NY2d 490, 495 [1987]).

The court properly permitted the arresting officer to testify as to the descriptions of defendant given by the purchasing and “ghost” undercover officers (see People v Huertas, 75 NY2d 487 [1990]; People v Read, 228 AD2d 304 [1996], lv denied 88 NY2d 1071 [1996]).

As the People concede, since the crime was committed before the effective date of the legislation providing for the imposition of a DNA databank fee (Penal Law § 60.35 [1] [e]), that fee should not have been imposed.

We perceive no reason to disturb the sentence. Concur—Tom, J.P., Andrias, Saxe, Marlow and Nardelli, JJ.