People v. Smith

• Citation: 584 N.Y.S.2d 568,184 A.D.2d 310
• Parties: The PEOPLE of the State of New York, Respondent, v. Kevin SMITH, Defendant-Appellant.
• Decision Date: 11 June 1992
• Court: New York Supreme Court — Appellate Division

Page 568

584 N.Y.S.2d 568

184 A.D.2d 310

The PEOPLE of the State of New York, Respondent, v. Kevin SMITH, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

June 11, 1992.

Before SULLIVAN, J.P., and MILONAS, ROSS, ASCH and KASSAL, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (John A.K. Bradley, J.), rendered May 17, 1989, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of imprisonment of from 8 to 16 years, unanimously affirmed.

The trial evidence was sufficient to prove beyond a reasonable doubt that defendant participated in the sale of heroin, as testified to by the undercover officer, and that he was not present merely to purchase drugs. In particular, defendant's pointed questioning of the undercover officer sufficiently demonstrated that defendant's approval was necessary to consummate the sale.

There is no reason to doubt the police officers' testimony that the information they recorded in their daily report on the day of defendant's arrest was the equivalent of that contained in their discarded scrap notes (see, People v. Serrando, 184 A.D.2d 1094, 583 N.Y.S.2d 245). The trial court's decision to sanction the People by delivering an adverse inference charge was, in the circumstances, appropriate (see, People v. Martinez, 71 N.Y.2d 937, 528 N.Y.S.2d 813, 524 N.E.2d 134).

In light of the fact that this offense constitutes defendant's third conviction for felony drug sales, we do not find the sentence imposed to have been excessive.