People v. White

172 A.D.2d 790

Opinion

Appeal by the defendant from a judgment of the County Court, Nassau County (Thorp, J.), rendered March 14, 1989, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Furthermore, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).

The defendant’s contention that the jury’s verdict is repugnant is not preserved for appellate review since he failed to object to the verdict prior to the discharge of the jury (see, People v Stahl, 53 NY2d 1048; People v Almeida, 159 AD2d 508). In any event, contrary to the defendant’s assertions, the verdict is not repugnant. Inasmuch as possession is not a necessary element of criminal sale of a controlled substance in the third degree (see, Penal Law § 220.39 [1]), the jury’s acquittal of the defendant of the charge of criminal possession of a controlled substance in the third degree (see, Penal Law § 220.16 [1]) does not render infirm his conviction on the sale count (see, People v Basora, 151 AD2d 588, affd 75 NY2d 992; People v Gaviria, 148 AD2d 630).

We have considered the defendant’s remaining contentions and find them to be without merit. Lawrence, J. P., Harwood, Rosenblatt and O’Brien, JJ., concur.