People v. Perkov

Appellate Division of the Supreme Court of New York

People v. Perkov

227 A.D.2d 960, 643 N.Y.S.2d 856, 1996 N.Y. App. Div. LEXIS 6890

Appellate Division of the Supreme Court of the State of New York·Decided May 31, 1996·Published·Cited by 1 cases

Opinion

Judgment unanimously affirmed. Memorandum: Defendant was convicted of two counts of criminal sale of a controlled substance in the third degree for selling one-half gram of cocaine to a police informant on two separate occasions. The informant agreed to wear a body wire and to purchase cocaine from defendant, who lived in the upper apartment in the same building as the informant. On each occasion, the informant was searched prior to the transaction and was given money by the police, who then observed the informant enter the building and also monitored the informant’s conversation with defendant during the transaction. On each occasion, the informant returned and turned over to the police a package, later determined to contain cocaine.

Defendant’s argument that the evidence is legally insufficient has not been preserved for review by a motion to dismiss specifically directed at the alleged defects in the proof (see, People v DeJac, 219 AD2d 102). Were we to reach the merits of defendant’s argument, we would conclude that the proof, viewed in the light most favorable to the People, is sufficient to support the verdict (see, People v Williams, 84 NY2d 925, 926). The credibility of the informant was a matter for resolution by the jury (see, People v Davis, 193 AD2d 885, lv denied 82 NY2d 716) and the tapes of the conversations between defendant and the informant corroborate the informant’s account of the transactions.

The evidence, the law, and the circumstances of this case, viewed in totality and at the time of the representation, reveal that defense counsel provided meaningful representation (see, People v Flores, 84 NY2d 184, 187; People v Baldi, 54 NY2d 137, 147). We decline to exercise our power to modify defendant’s sentence as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [b]). (Appeal from Judgment of Herkimer County Court, Kirk, J. — Criminal Sale Controlled Substance, 3rd Degree.) Present — Pine, J. P., Fallon, Callahan, Doerr and Davis, JJ.

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Judgment unanimously affirmed. Memorandum: Defendant was convicted of two counts of criminal sale of a controlled substance in the third degree for selling one-half gram of cocaine to a police informant on two separate occasions. The informant agreed to wear a body wire and to purchase cocaine from defendant, who lived in the upper apartment in the same building as the informant. On each occasion, the informant was searched prior to the transaction and was given money by the police, who then observed the informant enter the building and also monitored the informant’s conversation with defendant during the transaction. On each occasion, the informant returned and turned over to the police a package, later determined to contain cocaine.

Defendant’s argument that the evidence is legally insufficient has not been preserved for review by a motion to dismiss specifically directed at the alleged defects in the proof (see, People v DeJac, 219 AD2d 102). Were we to reach the merits of defendant’s argument, we would conclude that the proof, viewed in the light most favorable to the People, is sufficient to support the verdict (see, People v Williams, 84 NY2d 925, 926). The credibility of the informant was a matter for resolution by the jury (see, People v Davis, 193 AD2d 885, lv denied 82 NY2d 716) and the tapes of the conversations between defendant and the informant corroborate the informant’s account of the transactions.

The evidence, the law, and the circumstances of this case, viewed in totality and at the time of the representation, reveal that defense counsel provided meaningful representation (see, People v Flores, 84 NY2d 184, 187; People v Baldi, 54 NY2d 137, 147). We decline to exercise our power to modify defendant’s sentence as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [b]). (Appeal from Judgment of Herkimer County Court, Kirk, J. — Criminal Sale Controlled Substance, 3rd Degree.) Present — Pine, J. P., Fallon, Callahan, Doerr and Davis, JJ.

People v. Perkov, 227 A.D.2d 960, 643 N.Y.S.2d 856, 1996 N.Y. App. Div. LEXIS 6890 (N.Y. Ct. App. 1996).

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Opinion

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