People v. Gomez
| Citation | 539 N.Y.S.2d 776,149 A.D.2d 432 |
| Parties | The PEOPLE, etc., Respondent, v. Emanuel GOMEZ, Appellant. |
| Decision Date | 03 April 1989 |
| Court | New York Supreme Court — Appellate Division |
Sanford H. Grohman, New York City, for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Anthea H. Bruffee and Karen Gomes Andreasian, of counsel), for respondent.
Before MANGANO, J.P., and LAWRENCE, EIBER and SPATT, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vinik, J.), rendered August 9, 1985, convicting him of criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant, who was being observed by a police officer through a pair of binoculars, met two individuals under an elevated portion of the Brooklyn Queens Expressway and had a conversation. The police officer then observed the defendant hand over "at least one tinfoil packet" to one of the individuals who was later identified as Carlos Caro. The police backup team to whom these observations had been relayed by radio arrested Caro approximately two blocks away and found two tinfoil packets of cocaine. The defendant was also arrested, and eight tinfoil packets of cocaine were found in his possession. From these facts, the jury could clearly infer that the defendant possessed the cocaine with intent to sell.
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5]).
The defendant's claim of repugnancy was not preserved for appellate review because he failed to object to the verdict prior to the discharge of the jury (People v. Alfaro, 66 N.Y.2d 985, 499 N.Y.S.2d 378, 489 N.E.2d 1280; People v. Kramer, 123 A.D.2d 786, 507 N.Y.S.2d 866, lv. denied, 69 N.Y.2d 713, 512 N.Y.S.2d 1039, 504 N.E.2d 407). In any event, the verdict was not repugnant. A determination of whether a verdict is repugnant is to be made solely upon the basis of a review of the trial court's charge (see, People v. Green, 71 N.Y.2d 1006, 530 N.Y.S.2d 97, 525 N.E.2d 742; People v. Hampton, 61 N.Y.2d 963, 475 N.Y.S.2d 273, 463 N.E.2d 614). The trial court charged the jury that counts one through three of the indictment related to the two tinfoil packets found on Carlos Caro, while counts four and five involved the eight tinfoil packets found on the defendant. In view of the division of...
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...N.Y.S.2d 555 74 N.Y.2d 794, 544 N.E.2d 233 People v. Gomez (Emanuel) COURT OF APPEALS OF NEW YORK JUL 17, 1989 Wachtler, C.J. --- A.D.2d ----, 539 N.Y.S.2d 776 App.Div. 2, Kings Denied ...