Opinion
June 19, 1986
Appeal from the County Court of Columbia County (Leaman, J.).
Defendant was convicted upon the testimony of an undercover State Police officer to whom he sold a $10 packet of cocaine on two separate occasions in the presence of an informant who had arranged their meeting. The sole witness for the defense was defendant, who denied selling the drugs to the police officer. Seeking reversal on this appeal, defendant contends that (1) there was insufficient evidence to support the verdict of the jury, (2) County Court erred in failing to give the jury limiting instructions in their consideration of a nine-year-old prior conviction for criminal possession of stolen property in the third degree, and, in any event, it was an abuse of discretion to permit cross-examination of defendant on this prior conviction, and (3) the sentence was harsh and excessive.
The conviction must be affirmed. First, the prosecution established each element of the crime charged if the jury accepted the testimony of the police officer and the informant. Evaluating the evidence in a light most favorable to the People, as we must (People v. Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932; People v. Kennedy, 47 N.Y.2d 196, 203), the issue presented is essentially one of the credibility of the witnesses, an issue in the exclusive domain of the jury (People v. Barnes, 50 N.Y.2d 375, 381; People v. Irving, 107 A.D.2d 944). Thus, although the record demonstrates some inconsistencies between the testimony of the police officer and the informant, the jury resolved any conflict by its verdict. The evidence was sufficient to establish defendant's guilt beyond a reasonable doubt (see, People v. Scarincio, 95 A.D.2d 967, 968).
Second, County Court's ruling on the Sandoval motion clearly demonstrates that, on each occasion, the court stated that it would give limiting instructions to the jury as to the purpose for such evidence, if requested. No request was ever made by defendant at the time the evidence was introduced by defendant, or upon cross-examination with respect thereto by the prosecution. Moreover, there was no request to charge on the issue or any exception to the charge of the court at the conclusion thereof. Under such circumstances, and in the absence of a request, the issue has been waived (see, People v. Carey, 109 A.D.2d 982, 983; People v. Ricchiuti, 93 A.D.2d 842, 845; People v. Moorer, 77 A.D.2d 575, 577). Finally, we cannot say that the court abused its discretion in sentencing defendant to concurrent prison terms of 6 to 20 years (see, People v. Ray, 105 A.D.2d 988, 989).
Judgment affirmed. Mahoney, P.J., Kane, Casey and Levine, JJ., concur.