People v. Simmons

256 A.D.2d 90, 681 N.Y.S.2d 498, 1998 N.Y. App. Div. LEXIS 13091

Opinion

—Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J.), rendered October 19, 1995, convicting defendant, after a nonjury trial, of criminal possession of a controlled substance in the third degree, criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and also convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to three concurrent terms of 5V2 to 11 years concurrent with a term of 1 year, unanimously affirmed. Order same court and Justice, entered on or about December 14, 1995, which denied defendant’s motion to vacate judgment, unanimously affirmed.

The evidence was legally sufficient to support the charges of sale of a controlled substance and possession with intent to sell, based on the undercover officer’s testimony of the conversation between himself and defendant, along with defendant’s display of crack cocaine to the officer, and the eventual recovery of the crack cocaine from defendant’s person (see, Penal Law § 220.00 [1]; People v Boyd, 244 AD2d 230, lv denied 91 NY2d 924). Defendant’s statements to the officer constituted a clear offer to sell, conditioned on the officer’s smoking some of the cocaine in defendant’s presence. Furthermore, the verdict was not against the weight of the evidence. Concur — Sullivan, J. P., Rosenberger, Wallach and Mazzarelli, JJ.