From Casetext: Smarter Legal Research

People v. Miller

Appellate Division of the Supreme Court of New York, First Department
Mar 12, 1991
171 A.D.2d 453 (N.Y. App. Div. 1991)

Opinion

March 12, 1991

Appeal from the Supreme Court, New York County, Herbert Altman, J.


At approximately 7:45 A.M., on October 7, 1988, an undercover officer approached the defendant on a midtown street and asked him "is anything out." In exchange for $20 in prerecorded "buy money", defendant handed the officer four vials which, according to the officer contained a substance other than cocaine. The officer returned these vials to defendant, who returned the money and led the officer to the co-defendant who was standing nearby. The co-defendant gave the officer four plastic envelopes, each containing a vial of cocaine.

Defendant contends that the People failed to prove his guilt beyond a reasonable doubt. He points out that no prerecorded "buy money" was recovered from him, and that only a portion of the currency was recovered from the co-defendant. Defendant also argues that the testimony of the undercover officer was incredible as a matter of law, and that he was denied a fair trial by the prosecutor's comments in summation.

The fact that defendant did not possess the "buy money", or that only a portion was recovered from the co-defendant, does not create reasonable doubt as a matter of law. There was ample time to dispose of the "buy money". Further, the fact that the officer omitted to mention the fact that defendant initially attempted to sell the officer non-narcotic substances merely raises an issue of credibility for the jury to resolve. On the record, we find no basis to set aside this determination.

Defendant did not object to the prosecutor's statement in summation that defendant could have been arrested for fraud for attempting to purvey non-narcotic substances, and has accordingly not preserved it for review (CPL 470.05). We decline to review the matter in the interest of justice, as the statement was responding to the arguments made by defense counsel.

Concur — Sullivan, J.P., Milonas, Rosenberger, Asch and Smith, JJ.


Summaries of

People v. Miller

Appellate Division of the Supreme Court of New York, First Department
Mar 12, 1991
171 A.D.2d 453 (N.Y. App. Div. 1991)
Case details for

People v. Miller

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANK MILLER, Appellant

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 12, 1991

Citations

171 A.D.2d 453 (N.Y. App. Div. 1991)
567 N.Y.S.2d 35