Opinion
106229.
01-21-2016
The PEOPLE of the State of New York, Respondent, v. John BOYD, Also Known as JB, Appellant.
Sandra M. Colatosti, Albany, for appellant. P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Sandra M. Colatosti, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Opinion
PETERS, P.J.
Appeal from a judgment of the Supreme Court (Breslin, J.), rendered August 13, 2013 in Albany County, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree.
Following a jury trial, defendant was convicted of criminal sale of a controlled substance in the third degree stemming from his sale of heroin to a confidential informant (hereinafter CI) on April 10, 2012. The trial evidence established that police detectives strip-searched the CI for contraband and, finding none, fitted her with a wire and provided her with prerecorded buy money. The CI was then transported by one of the detectives to a location in the City of Albany where she made a controlled call to defendant arranging for the two to meet. While under constant police surveillance, the CI walked via a predetermined route to the agreed-upon location and, after waiting for approximately 20 minutes, defendant and another individual arrived and the three entered a basement apartment. Although the detectives did not observe the transaction, the CI testified that, while in the apartment, defendant gave her a bag of heroin in return for which she gave defendant the marked buy money. After exiting the apartment, the CI returned to the police vehicle and turned over a bag containing a substance that was later determined to be heroin. A search of the CI upon arrival back at the police station again revealed no drugs or money on her person.
Defendant challenges the verdict as contrary to the weight of the evidence, specifically arguing that the testimony of the CI—the only witness to identify him as the individual who sold the heroin—was so inherently suspect as to be unworthy of belief. Although the CI has a lengthy criminal history and agreed to assist authorities in the controlled drug buy in exchange for dismissal of an outstanding drug charge against her, these issues were fully explored on cross-examination and presented to the jury for its consideration (see People v. Gibson, 121 A.D.3d 1416, 1418, 995 N.Y.S.2d 383 2014, lv. denied 24 N.Y.3d 1119, 3 N.Y.S.3d 761, 27 N.E.3d 475 2015; People v. Jones, 101 A.D.3d 1241, 1242, 955 N.Y.S.2d 694 2012, lv. denied 21 N.Y.3d 944, 968 N.Y.S.2d 6, 990 N.E.2d 140 2013; People v. Wilson, 100 A.D.3d 1045, 1046, 952 N.Y.S.2d 837 2012, lv. denied 22 N.Y.3d 998, 981 N.Y.S.2d 4, 3 N.E.3d 1172 2013; People v. Rose, 79 A.D.3d 1365, 1366–1367, 912 N.Y.S.2d 347 2010 ). Moreover, the CI's testimony was consistent and corroborated by the detectives who had her under constant surveillance and confirmed that she entered the apartment with the buy money and without any contraband but exited it with heroin (see People v. Heaney, 75 A.D.3d 836, 837, 906 N.Y.S.2d 350 2010, lv. denied 15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821 2010; People v. Golden, 24 A.D.3d 806, 807, 804 N.Y.S.2d 496 2005, lvs. denied 6 N.Y.3d 812, 813, 812 N.Y.S.2d 451, 452, 845 N.E.2d 1282, 1283 2006 ). Evaluating the evidence in a neutral light and deferring to the jury's credibility assessments (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 2007 ), we find that the jury gave the evidence the weight it should be accorded (see People v. Gibson, 121 A.D.3d at 1418, 995 N.Y.S.2d 383; People v. Nichol, 121 A.D.3d 1174, 1177, 994 N.Y.S.2d 691 2014, lv. denied 25 N.Y.3d 1205, 16 N.Y.S.3d 527, 37 N.E.3d 1170 2015; People v. Tisdale, 103 A.D.3d 987, 988, 959 N.Y.S.2d 764 2013, lvs. denied 21 N.Y.3d 1004, 971 N.Y.S.2d 255, 993 N.E.2d 1278 2013, 21 N.Y.3d 1010, 971 N.Y.S.2d 262, 993 N.E.2d 1286 2013; People v. Rose, 79 A.D.3d at 1367, 912 N.Y.S.2d 347).
Defendant's contention that Supreme Court failed to give adequate cautionary instructions to the jury concerning note taking is unpreserved for our review (see People v. Tubbs, 115 A.D.3d 1009, 1011–1012, 981 N.Y.S.2d 830 2014; People v. Schwing, 9 A.D.3d 685, 686, 779 N.Y.S.2d 816 2004, lv. denied 3 N.Y.3d 742, 786 N.Y.S.2d 821, 820 N.E.2d 300 2004; People v. Thornton, 4 A.D.3d 561, 563, 771 N.Y.S.2d 597 2004, lv. denied 2 N.Y.3d 808, 781 N.Y.S.2d 307, 814 N.E.2d 479 2004 ).
ORDERED that the judgment is affirmed.
LAHTINEN, GARRY, ROSE and CLARK, JJ., concur.