Opinion
(1302) KA 99-05369
December 21, 2001.
(Appeal from Judgment of Wayne County Court, Kehoe, J. — Criminal Sale Controlled Substance, 3rd Degree.)
PRESENT: PINE, J.P., SCUDDER, BURNS, GORSKI AND LAWTON, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16) and one count of criminal sale of a controlled substance in the third degree (Penal Law § 220.39). The conviction arises from two controlled purchases of cocaine by a confidential informant. The informant, defendant's friend, offered to assist police after his vehicle was stopped by police and cocaine was recovered. He purchased cocaine from defendant on two occasions, and one of those transactions was tape-recorded. Defendant failed to preserve for our review his contention that County Court erred in admitting the audiotape of that transaction in evidence, and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]). Defendant also failed to preserve for our review his contention that the court erred in permitting the prosecution to cross-examine him with respect to a prior drug-related conviction if he raised the defense of entrapment. In any event, that contention is without merit ( see, People v. Palumbo, 258 A.D.2d 963, lv denied 93 N.Y.2d 901). With respect to the court's remaining Sandoval rulings, we conclude that the court did not abuse its discretion in determining that defendant could be questioned with respect to prior convictions because those convictions demonstrated that defendant placed his own interests above society's interests ( see, People v. Brown, 226 A.D.2d 1108, 1109, lv denied 88 N.Y.2d 964; see generally, People v. Walker, 83 N.Y.2d 455, 459).
We further conclude that the court did not abuse its discretion in permitting the confidential informant to testify that he had purchased cocaine from defendant many times in the past and in permitting an investigator to testify regarding his surveillance of defendant. The court properly balanced the probative value of that testimony in light of defendant's entrapment defense against its prejudicial effect ( see, People v. Ortiz, 259 A.D.2d 979, 980, lv denied 93 N.Y.2d 1024; see also, People v. Ingram, 71 N.Y.2d 474, 479-481; People v. Calvano, 30 N.Y.2d 199, 205-206). Contrary to defendant's contention, when viewed in the light most favorable to the People ( see, People v. Contes, 60 N.Y.2d 620, 621), the evidence is legally sufficient to support the verdict ( see, People v. Bleakley, 69 N.Y.2d 490, 495).
Defendant further contends that the verdict is repugnant because he was acquitted of criminal sale of a controlled substance in the third degree with respect to an alleged transaction on November 5, 1998 but was convicted of criminal possession of a controlled substance in the third degree with respect to that same date. Defendant failed to preserve that contention for our review ( see, CPL 470.05) and, in any event, it is without merit ( see, People v. Stovall, 273 A.D.2d 915, lv denied 95 N.Y.2d 908; People v. Laboy, 254 A.D.2d 80, 80-81 , lv denied 94 N.Y.2d 825; see generally, People v. Loughlin, 76 N.Y.2d 804, 806).
Upon our review of the record, we conclude that defendant received effective assistance of counsel ( see, People v. Benevento, 91 N.Y.2d 708, 712-714). We have examined defendant's remaining contentions and conclude that they are without merit.