People v. Tavares

134 A.D.3d 436, 19 N.Y.S.3d 735

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 3, 2015
• Docket: 2886/09 -16275 16274 16273
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Edgar Walker, J.), rendered March 15, 2011, as amended June 2, 2011, convicting defendant, after a jury trial, of two counts each of criminal sale of a controlled substance in the first and second degrees, and sentencing him to concurrent terms of 12 years, unanimously affirmed.

The evidence provided reasonable assurances of the identity and unchanged condition of the illegal substances recovered (see People v Julian, 41 NY2d 340, 343 [1977]), including proof of police control over the drugs (see People v Cortijo, 251 AD2d 256 [1st Dept 1998], lv denied 92 NY2d 948 [1998]). The discrepancy regarding the color of the heroin raised factual issues that were properly resolved by the jury (see People v Ciriaco, 11 AD3d 324 [1st Dept 2004], lv denied 4 NY3d 742 [2004]; People v Epps, 8 AD3d 85 [1st Dept 2004], lv denied 3 NY3d 673 [2004]). The jury could have reasonably rejected the inference that the drugs tested by chemists and produced in court were not the same items that were recovered by the police in this case; the jury could have instead concluded that the color discrepancy was the product of mistake, including faulty observation, recollection or recording. Concur — Tom, J.P., Sweeny, Andrias and Gische, JJ.