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The defendant was arrested after selling approximately two ounces of cocaine to a confidential police informant in the City of Cortland. He was indicted and found guilty after a jury trial of one count of criminal sale of a controlled substance. County Court sentenced him, as a second violent felony offender, to a prison term of 14 years followed by five years of post-release supervision and directed him to pay restitution of $2,400 to the Cortland County Drug Task Force for the buy money used in the undercover operation.
Initially, the records show that the defendant’s challenge to the legal sufficiency of the evidence presented at trial is not preserved because he failed to move for a trial order of dismissal with sufficient particularity. Nevertheless, as defendant also argues that the verdict is against the weight of the evidence, it is necessary to evaluate whether the elements of the crimes charged were sufficiently proven at trial.
It was found that defendant’s conviction was not against the weight of the evidence. The police informant and a police investigator, both testified that the operation began on November 5, 2009 when the police informant and the police investigator call the defendant and ask for a couple of snow tires, which is allegedly code for two ounces of cocaine. Further testimony established that, before proceeding to the arranged buy location, members of the drug task force searched the police informant and his vehicle and found no drugs. Thereafter, the police investigator gave the police informant $2,400 of marked bills to purchase the drugs. A recording device was placed on the police investigator and police informant, followed immediately thereafter by members of the drug task force, drove in separate vehicles to the prearranged buy location. Both officers who were in the unmarked police vehicle directly behind the police informant, testified that they remained in visual contact with the police informant truck during the entirety of the drive to the buy location.
At the time of his arrest, defendant was searched and found to have the entire marked $2,400 in his possession. In addition, both police officers testified that two plastic bags containing a white, powdery substance were found on the front seat of the truck and which were later weighed and field-tested, and it was determined the substance to be approximately 50 grams of cocaine. The field test results were subsequently confirmed by the forensic scientist who tested the substance at the state crime lab.
The defendant also testified and proffered his version of the events that took place on November 5, 2009. While the defendant’s testimony contradicted that offered by the People, it presented a classic credibility issue for the jury to resolve. The jury apparently chose to credit the People’s version of events. Even if a different finding would not have been unreasonable, viewing the evidence in a neutral light and deferring to the jury’s superior position to determine witness credibility, we do not find that the jury failed to accord the evidence its proper weight.
The People also presented the testimony of the evidence custodian of the Cortland County Sheriff’s Office in November 2009. Sources revealed that he took the plastic bags from the evidence locker to the crime lab for testing. He also testified that the bags were received into custody by the crime lab. After they were tested, they were returned to the evidence locker. These events were recorded- the chain of custody record maintained by the evidence custodian – which was turned over to defense counsel prior to his examination.
The defendant’s contention that the People’s failure to turn over evidence prior to trial deprived him of a fair trial is unconvincing. Further, inasmuch as defendant had the opportunity to examine all of the individuals who handled the plastic bags after November 5, 2009 and their testimony was consistent with the information provided on exhibit No. 28, its disclosure during the trial did not prejudice defendant.
On the other hand, in view of his extensive criminal history, including three prior drug possession convictions, defendant’s sentence was not harsh and excessive. Moreover, the fact that the sentence imposed after trial was greater than the sentence offered as part of a pretrial plea agreement offer, which the defendant rejected, is not proof that defendant was penalized for exercising his right to a jury trial. Nor did they find the existence of any extraordinary circumstances or abuse of discretion warranting a modification of the sentence in the interest of justice.
The defendant’s remaining contentions have been considered and found to be without merit.
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