People v. McGriff
| Decision Date | 22 February 1994 |
| Citation | 201 A.D.2d 672,607 N.Y.S.2d 980 |
| Parties | The PEOPLE, etc., Respondent, v. Herbert McGRIFF, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Risa Gerson, of counsel), for appellant.
Richard A. Brown, Dist. Atty., Kew Gardens (Steven J. Chananie, Jay L. Weiner, and Kevin G. Dumbach, of counsel), for respondent.
Before SULLIVAN, J.P., and SANTUCCI, GOLDSTEIN and FLORIO, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Giaccio, J.), rendered September 23, 1991, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and resisting arrest, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's conviction stems from his sale, on January 12, 1991, of eight vials of crack cocaine and the recovery of 53 red-capped vials of crack cocaine from his jacket pocket when he was arrested after the sale. On appeal, the defendant contends that, since the People failed to place a lab report in evidence showing that the substance in the eight vials was crack cocaine, they failed to prove his guilt of criminal sale of a controlled substance in the third degree beyond a reasonable doubt.
The defendant failed to raise this issue at trial. Therefore, it is not preserved for appellate review (see, People v. Balls, 69 N.Y.2d 641, 511 N.Y.S.2d 586, 503 N.E.2d 1017). In any event, 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 is legally sufficient to establish the defendant's guilt of criminal sale of a controlled substance in the third degree beyond a reasonable doubt. There was expert testimony at trial that the 53 vials found in the defendant's pocket contained crack cocaine. There was additional circumstantial evidence that the eight vials looked exactly like the 53 vials and that the defendant took them out of the same jacket pocket from which the 53 vials were later recovered. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt is not against the weight of the evidence (see, CPL 470.15[5].
The trial court did not improvidently exercise its discretion in limiting defense counsel's cross-examination of the People's main witness. The trial court has broad discretion to limit the...
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