People v. Osbina

161 A.D.2d 809, 556 N.Y.S.2d 497, 1990 N.Y. App. Div. LEXIS 6706

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 1990
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Rienzi, J.), rendered April 14, 1988, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence adduced at trial in a 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 of criminal sale of a controlled substance in the third degree. The People proved that the defendant provided the cocaine which was the subject of the sale by the codefendant to the undercover police officer (see, People v Payne, 135 AD2d 746, 747). The defendant’s reliance on People v Marshall (72 AD2d 922), is misplaced since the defendant in that case had not provided the contraband for the drug transaction.

As to the issue of the legal sufficiency of the proof with respect to the defendant’s judgment of conviction for criminal possession of a controlled substance in the third degree, premised upon the nine tin foils containing cocaine recovered from a paper bag found in the vicinity of the defendant’s feet at the time of his arrest, this issue has not been preserved for appellate review as a matter of law inasmuch as it was not raised with specificity in the trial court (see, People v Bynum, 70 NY2d 858; People v McGowan, 160 AD2d 896; People v Vernon, 150 AD2d 407), and we decline to review the issue in the exercise of our interest of justice jurisdiction. Lawrence, J. P., Kunzeman, Kooper and Harwood, JJ., concur.