People v. Diaz

• Decision Date: 07 October 1993
• Citation: 197 A.D.2d 379,602 N.Y.S.2d 138
• Parties: The PEOPLE of the State of New York, Respondent, v. Jesus DIAZ, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 138

602 N.Y.S.2d 138

197 A.D.2d 379

The PEOPLE of the State of New York, Respondent, v. Jesus DIAZ, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Oct. 7, 1993.

Before SULLIVAN, J.P., and ROSENBERGER, ROSS and ASCH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Lawrence H. Bernstein, J.), rendered August 7, 1991, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and sentencing him, as a second felony offender, to a term of six to twelve years, unanimously affirmed.

Viewing the evidence in a light most favorable to the People and giving them the benefit of every reasonable inference (People v. Malizia, 62 N.Y.2d 755, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert. denied 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264), we find that the evidence was sufficient as a matter of law to establish defendant's identity as the seller beyond a reasonable doubt. The absence of prerecorded buy money or additional drugs at the time of arrest does not negate guilt (People v. Walker, 186 A.D.2d 62, 63, 588 N.Y.S.2d 147 lv. denied 81 N.Y.2d 767, 594 N.Y.S.2d 730, 610 N.E.2d 403). Moreover, the issue of the lighting conditions and the undercover's preparation of the police report are matters appropriately left for the jury.

We note that the jury deliberated for many hours after the Allen charge before rendering its verdict, negating the contention that the charge was coercive (see People v. Glover, 165 A.D.2d 761, 763, 564 N.Y.S.2d 273 lv. denied 77 N.Y.2d 877, 568 N.Y.S.2d 920, 571 N.E.2d 90).

We have considered defendant's remaining claims and find them meritless.

Motion by appellant to enlarge the record is denied.