People v. George
| Decision Date | 29 April 1993 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Milton GEORGE, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before SULLIVAN, J.P., and CARRO, MILONAS, KUPFERMAN and ROSS, JJ.
Judgment, Supreme Court, New York County (Charles J. Tejada, J.), rendered December 9, 1991, convicting defendant, after jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, to concurrent terms of imprisonment of 4 1/2 to 9 years, and 1 year, respectively, unanimously affirmed.
Defendant was arrested in connection with a "buy and bust" operation. Contrary to his argument on appeal, the People proved his guilt of the crimes charged by overwhelming evidence (People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Defendant failed to preserve his claim of error by the trial court in its jury charge on the agency defense by appropriate and timely exception (People v. Argibay, 45 N.Y.2d 45, 53, 407 N.Y.S.2d 664, 379 N.E.2d 191, cert. denied sub nom. HahnDiGuiseppe v. New York, 439 U.S. 930, 99 S.Ct. 317, 58 L.Ed.2d 323). In any event, the charge as a whole conveyed the appropriate legal principles to the jury, whose factual determination of the issue is supported overwhelmingly by the record (see, People v. Lam Lek Chong, 45 N.Y.2d 64, 407 N.Y.S.2d 674, 379 N.E.2d 200, cert. denied 439 U.S. 935, 99 S.Ct. 330, 58 L.Ed.2d 331).
The trial court, after finding that the prosecutor's inadvertent head-nodding during portions of the jury charge did not signify any prejudice to defendant or misconduct on the part of the prosecutor, appropriately exercised its discretion in denying defendant's motion for a mistrial on this ground ( People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794).
We have considered defendant's additional arguments and find them to be either unpreserved for appellate review as a matter of law, or meritless.
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