People v. Wingo

• Decision Date: 28 February 2013
• Parties: The PEOPLE of the State of New York, Respondent, v. Terry C. WINGO, Appellant.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 1036

962 N.Y.S.2d 422

2013 N.Y. Slip Op. 01298

The PEOPLE of the State of New York, Respondent,

v.Terry C. WINGO, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Feb. 28, 2013.

Teresa C. Mulliken, Harpersfield, for appellant.

Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), for respondent.

Before: ROSE, J.P., SPAIN, STEIN and McCARTHY, JJ.

McCARTHY, J.

Appeal from a judgment of the County Court of Delaware County (Becker, J.), rendered January 31, 2011, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree.

After a confidential informant (hereinafter CI) purchased cocaine from defendant, he was charged with and convicted of criminal sale of a controlled substance in the third degree. County Court imposed a sentence of four years in prison followed by one year of postrelease supervision, plus a $5,000 fine and $50 restitution. Defendant appeals.

Defendant contends that his conviction is not supported by legally sufficient evidence and is against the weight of the evidence. Initially, we note that defendant failed to preserve his legal sufficiency argument by moving to dismiss at the close of the People's proof, but our review of the weight of the evidence necessarilyincludes our verification that the elements of the crime were established ( see People v. Harvey, 96 A.D.3d 1098, 1099 n., 945 N.Y.S.2d 802 [2012],lv. denied20 N.Y.3d 933, 957 N.Y.S.2d 692, 981 N.E.2d 289 [2012] ). The CI testified that she made a telephone call to arrange to buy drugs, went to an apartment known for drug sales, gave defendant $50 and he gave her cocaine. A scientist testified that the substance did, indeed, contain cocaine. Portions of the CI's testimony were inconsistent with her own testimony, her prior grand jury testimony or the testimony of the detective who supervised the drug buy. Additionally, the CI was a drug addict, possibly used drugs on the day of the buy, had a long criminal record, was working with the police to reduce criminal charges pending against her and had nine pending charges at the time of her testimony. These circumstances do not render her testimony incredible as a matter of law. Because the jury was aware of these circumstances when assessing the CI's credibility, and obviously believed her testimony that she purchased the cocaine from defendant, we will not intrude on the jury's findings ( see People v. Miles, 61 A.D.3d 1118, 1120, 876 N.Y.S.2d 551 [2009],lv. denied12 N.Y.3d 918, 884 N.Y.S.2d 699, 912 N.E.2d 1080 [2009] ). Therefore, the verdict is not against the weight of the evidence.

County Court's imposition of a $5,000 fine was proper. Defendant failed to preserve any challenge to the fine, as he did not object to its imposition at sentencing ( see People v. Carrillo, 257 A.D.2d 780, 783, 257 A.D.2d 780 [1999],lv. denied93 N.Y.2d 967, 695 N.Y.S.2d 53, 716 N.E.2d 1098 [1999] ). In any event, the court was not required to make specific findings as they are only necessary when the fine is based on any profit or gain that the defendant realized from the commission of the crime ( seePenal Law § 80.00[3]; People v. Carrillo, 257 A.D.2d at 783, 686 N.Y.S.2d 114), which was not the basis here.

Defendant received the effective assistance of counsel. While counsel did not move to dismiss at the close of the People's case or object to the fine at sentencing, defendant was not prejudiced because the motion and objection would not have...