Opinion
No. 1853.
December 22, 2009.
Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered March 13, 2007, as amended March 23, 2007, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, to a term of 3½ years, unanimously affirmed.
Steven Banks, The Legal Aid Society, New York (Adrienne Hale of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Brian F. McDonough of counsel), for respondent.
Before: Gonzalez, P.J., Tom, Sweeny, Freedman and Abdus-Salaam, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence ( see People v Danielson, 9 NY3d 342, 348-349). There is no basis for disturbing the jury's determinations concerning credibility, including its evaluation of inconsistencies in testimony. The fact that the jury acquitted defendant of a possession count does not warrant a different result, ( see People v Rayam, 94 NY2d 557), particularly since that count was based on the testimony of an officer who was not one of the undercover officers who testified about the sale.