People v Birch

People v Birch 2010 NY Slip Op 00064 [69 AD3d 425] January 7, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 10, 2010

The People of the State of New York, Respondent,
v
Robert Birch, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (David P. Stromes of counsel), for respondent.

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered August 7, 2008, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of four years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerning credibility. The evidence provided a satisfactory explanation for the fact that two officers made different observations, and defendant's arguments to the contrary are without merit.

The court properly exercised its discretion in admitting evidence that, earlier in the evening of the charged sale, the observing officer saw defendant make what appeared to be a drug sale to an unapprehended buyer. This evidence completed the narrative and its probative value outweighed its prejudicial effect (see e.g. People v Urena, 306 AD2d 137 [2003], lv denied 100 NY2d 625 [2003]). While the court should have provided a limiting instruction regarding the uncharged crime, we find, to the extent the claim is preserved, that any error is harmless.

We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P., Friedman, Nardelli, Renwick and RomÁn, JJ.