Opinion
January 18, 1994
Appeal from the Supreme Court, Queens County (Linakis, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction for criminal sale of a controlled substance in the third degree, vacating the sentence imposed thereon and dismissing that count of the indictment; as so modified, the judgment is affirmed.
In this case, the defendant was charged with, inter alia, criminal possession of a controlled substance in the second and third degrees following the execution of a search warrant for the premises that she leased. She was also charged with criminal sale of a controlled substance in the third degree, arising from an alleged sale of cocaine that was made several days before the search warrant was executed.
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it is not legally sufficient to establish the defendant's identity as the seller of the cocaine that was sold prior to the execution of the search warrant. Accordingly, the defendant's conviction of criminal sale of a controlled substance in the third degree is reversed, that count of the indictment is dismissed, and the sentence imposed thereon is vacated.
The defendant seeks to establish on appeal that the search warrant was improperly issued and that the physical evidence seized pursuant thereto should have been suppressed. However, some of the defendant's contentions are raised for the first time on appeal and are, thus, unpreserved for appellate review (see, People v. Tutt, 38 N.Y.2d 1011, 1012-1013; see generally, CPL 470.05). As to those contentions which are preserved for appellate review and which do not improperly rely upon evidence that was adduced only at trial (see, People v Hucks, 175 A.D.2d 213, 214; People v. Smith, 158 A.D.2d 488, 489), we are satisfied that both the reliability and knowledge requirements of the Aguilar-Spinelli test were met (see, Aguilar v. Texas, 378 U.S. 108; Spinelli v. United States, 393 U.S. 410; People v. Griminger, 127 A.D.2d 74, affd 71 N.Y.2d 635; see also, People v. Legister, 184 A.D.2d 734) and that the premises to be searched were sufficiently described in the warrant (see, People v. Nieves, 36 N.Y.2d 396, 401; cf., People v. Rainey, 14 N.Y.2d 35, 38-39).
Notwithstanding the defendant's contentions to the contrary, we do not find that she was denied a fair trial by virtue of, among other things, prosecutorial misconduct during summation (see, People v. Galloway, 54 N.Y.2d 396).
Further, we note that the sentence imposed upon the defendant was neither excessive (see, People v. Suitte, 90 A.D.2d 80) nor illegal.
We have examined the defendant's remaining contentions and find that they are either unpreserved for appellate review or without merit. Bracken, J.P., Rosenblatt, Copertino and Pizzuto, JJ., concur.