People v. Vincente

• Decision Date: 25 February 1992
• Citation: 580 N.Y.S.2d 259,180 A.D.2d 562
• Parties: The PEOPLE of the State of New York, Respondent, v. Daniel VINCENTE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 259

580 N.Y.S.2d 259

180 A.D.2d 562

The PEOPLE of the State of New York, Respondent, v. Daniel VINCENTE, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Feb. 25, 1992.

Before SULLIVAN, J.P., and MILONAS, KUPFERMAN, ROSS and SMITH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Robert M. Haft, J.), rendered May 16, 1990, 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 and fifth degrees, and which sentenced him to concurrent prison terms of 6 to 12 years, 6 to 12 years and 3 1/2 to 7 years, respectively, unanimously affirmed.

Defendant was arrested after an undercover police officer observed him on the street handing vials over to another in exchange for money. During deliberations, the jury asked whether it should consider the fact that no currency had been offered into evidence. The court, reiterating the substance of its prior instruction, told the jury to consider "the evidence in the case and the lack of evidence" in determining whether the People had proved their case beyond a reasonable doubt, and properly declined to instruct, as requested by defense counsel, that any inference could be drawn from the fact that no currency was offered into evidence. An instruction along these lines could have led the jury to draw a negative inference about the absence of the currency, a factor that tended neither to corroborate nor contradict the People's case (see, People v. Steinberg, 170 A.D.2d 50, 71-72, 573 N.Y.S.2d 965, lv. granted, 78 N.Y.2d 1081, 577 N.Y.S.2d 245, 583 N.E.2d 957).