People v. Sexton

50 A.D.2d 842, 376 N.Y.S.2d 599, 1975 N.Y. App. Div. LEXIS 11707

Opinion

— Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered April 7, 1975, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. Judgment modified as to the conviction, on the law and the facts, by reducing it to one of criminal facilitation in the first degree; as so modified, judgment affirmed as to the conviction; judgment reversed as to the sentence and case remanded to Criminal Term for resentence. In our opinion, the evidence was legally insufficient to establish defendant’s guilt of the crime of criminal sale of a controlled substance in the third degree. However, the proof adduced at trial was sufficient to establish his guilt of criminal facilitation in the first degree (Penal Law, § 115.05). Accordingly, we have modified the judgment by reducing the conviction to one of criminal facilitation in the first degree and have remanded the case to the trial court for resentence. Latham, Acting P. J., Hargett, Christ, Brennan and Hunder, JJ., concur.