Opinion
KA 00-00574.
February 11, 2004.
Appeal from a judgment of the Niagara County Court (Amy J. Fricano, J.), rendered February 18, 2000. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the fourth degree.
MICHAEL J. VIOLANTE, PUBLIC DEFENDER, LOCKPORT (ROBERT VIOLA OF COUNSEL), FOR DEFENDANT-APPELLANT.
MATTHEW J. MURPHY, III, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: WISNER, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09). Defendant was acquitted of criminal possession of a controlled substance in the third degree (§ 220.16 [1] [possession with intent to sell]). Defendant contends that County Court erred in allowing a prosecution witness to testify regarding a prior drug sale. We disagree. That testimony was properly admitted to establish that defendant possessed cocaine with the intent to sell it ( see People v. Hernandez, 71 N.Y.2d 233, 245-246; People v. Maddox, 272 A.D.2d 884, 884-885, lv denied 95 N.Y.2d 867; People v. Moody, 229 A.D.2d 936, lv denied 89 N.Y.2d 926). The probative value of that testimony outweighed any prejudice to defendant ( see Maddox, 272 A.D.2d at 885; Moody, 229 A.D.2d at 937; People v. Matos, 190 A.D.2d 819, lv denied 81 N.Y.2d 973), and "any prejudice to defendant was minimized by [the court's] limiting instructions" ( Maddox, 272 A.D.2d at 885; see People v. Dais, 222 A.D.2d 1045, 1046, lv denied 91 N.Y.2d 890). The verdict is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495; People v. Miley, 306 A.D.2d 164, 165, lv denied 100 N.Y.2d 623; People v. Rodriguez, 259 A.D.2d 571), and the sentence is neither unduly harsh nor severe.