People v. McKinley

Decision Date14 March 1994
Citation202 A.D.2d 520,610 N.Y.S.2d 802
PartiesThe PEOPLE, etc., Respondent, v. Ralph McKINLEY, Appellant.
CourtNew York Supreme Court — Appellate Division

Steven R. Bernhard, Mineola, for appellant.

Jeanine Pirro, Dist. Atty., White Plains (Peter A. Pagnucco, Richard E. Weill, and Valerie Livingston, of counsel), for respondent.

Appeal by the defendant from (1) a judgment of the County Court, Westchester County (Nicolai, J.), rendered December 13, 1989, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree under Indictment No. 89-00223-01, upon a jury verdict, and (2) a judgment of same court, also rendered December 13, 1989, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree under Indictment No. 89-00149-02, upon a jury verdict, and imposing sentences.

ORDERED that the judgments are modified, as a matter of discretion in the interest of justice, to provide that all terms of imprisonment shall run concurrently; as so modified, the judgments are affirmed.

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 beyond a reasonable doubt. 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 defendants' Rosario claims regarding a dictaphone tape have not been preserved for appellate review since the defense counsel failed to object, seek sanctions, or move for a mistrial upon learning of the existence of the tape and its possible destruction (see, People v. Rogelio, 79 N.Y.2d 843, 844, 580 N.Y.S.2d 185, 588 N.E.2d 83; People v. Rivera, 78 N.Y.2d 901, 902-903, 573 N.Y.S.2d 453, 577 N.E.2d 1045; People v. Jackson, 78 N.Y.2d 900, 901, 573 N.Y.S.2d 452, 577 N.E.2d 1044; People v. Sheppard, 185 A.D.2d 904, 905, 587 N.Y.S.2d 860; People v. Merchant, 171 A.D.2d 887, 567 N.Y.S.2d 812; People v. Provenzano, 154 A.D.2d 486, 547 N.Y.S.2d 228). The trial court was not required to impose sanctions, sua sponte (see, People v. Best, 145 A.D.2d 499, 535 N.Y.S.2d 108). Moreover, we decline to reach this issue in the exercise of our interest of justice jurisdiction since there is no evidence of bad faith on the part of the prosecution (see, People v. Rice, 75 N.Y.2d 929, 932, 555 N.Y.S.2d 677, 554 N.E.2d 1265; People v. Diggs, 185 A.D.2d 990, 587 N.Y.S.2d 406; People v. Hyde, 172 A.D.2d 305, 568 N.Y.S.2d 388).

Contrary to the defendant's contention, the People properly established a chain of custody for the admission of drugs into evidence (see, People v. Julian, 41 N.Y.2d 340, 342-343, 392 N.Y.S.2d 610, 360 N.E.2d 1310; People v. Newman, 129 A.D.2d 742, 514 N.Y.S.2d 501). The trial court's alibi charge did not shift the burden of proof away from the prosecution...

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6 cases
  • People v. Powell
    • United States
    • New York Supreme Court — Appellate Division
    • December 30, 1996
    ...People v. Vacante, 215 A.D.2d 415, 626 N.Y.S.2d 960, lv. denied 86 N.Y.2d 784, 631 N.Y.S.2d 630, 655 N.E.2d 727; People v. McKinley, 202 A.D.2d 520, 521, 610 N.Y.S.2d 802, lv. denied 84 N.Y.2d 829, 617 N.Y.S.2d 149, 641 N.E.2d 170), and we decline to exercise our power to reach the issue as......
  • Richard K., Matter of
    • United States
    • New York Supreme Court — Appellate Division
    • April 29, 1996
    ...453, 577 N.E.2d 1045) and we decline to reach it in the exercise of our interest of justice jurisdiction (see, People v. McKinley, 202 A.D.2d 520, 521, 610 N.Y.S.2d 802). ...
  • People v. Perry
    • United States
    • New York Supreme Court — Appellate Division
    • November 9, 1995
    ...for the destruction of this evidence, we conclude that defendant has waived any claim of substantial prejudice (see, People v. McKinley, 202 A.D.2d 520, 610 N.Y.S.2d 802, lv. denied 84 N.Y.2d 829, 617 N.Y.S.2d 149, 641 N.E.2d 170; People v. Merchant, 171 A.D.2d 887, 567 N.Y.S.2d 812; People......
  • People v. Ocejo
    • United States
    • New York Supreme Court — Appellate Division
    • March 14, 1994
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