People v. Sanders

290 A.D.2d 217, 735 N.Y.S.2d 123, 2002 N.Y. App. Div. LEXIS 300

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 3, 2002
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Laura Drager, J.), rendered February 9, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony offender, to concurrent terms of 5 to 10 years, unanimously modified, on the law and the facts, to the extent of vacating the conviction of criminal sale of a controlled substance in or near school grounds and dismissing that count of the indictment, and otherwise affirmed.

The verdict convicting defendant of criminal sale of a controlled substance in the third degree was not against the weight of the evidence. There is no basis upon which to disturb the jury’s determinations concerning identification and credibility. The jury properly rejected defendant’s explanation of how he came to be found in possession of all the prerecorded buy money, as well as additional bags of crack cocaine, when he was arrested minutes after the sale was completed.

However, the conviction of criminal sale of a controlled substance in or near school grounds was based on legally insufficient evidence and was against the weight of the evidence. The People failed to prove beyond a reasonable doubt that the sale took place within 1,000 feet of a school, in that they only offered the distance from the sale site to the front of a church adjacent to the school, without showing the distance from the church to the school.

There is no basis for a remand for either a new trial or resentencing on the remaining conviction. Concur — Nardelli, J.P., Williams, Andrias, Saxe and Friedman, JJ.