People v Rose

People v Rose 2007 NY Slip Op 10045 [46 AD3d 392] December 20, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

The People of the State of New York, Respondent,
v
Edgar Rose, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York City (Seon Jeong Lee of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Alan Gadlin of counsel), for respondent.

Judgment, Supreme Court, New York County (A. Kirke Bartley, J.), rendered March 20, 2006, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and resisting arrest, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to concurrent terms of seven years, seven years and one year, respectively, unanimously affirmed.

The jury's verdict rejecting defendant's agency defense, and convicting him of resisting arrest, was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning credibility (see People v Bleakley, 69 NY2d 490, 495 [1987]). In this observation sale case, defendant called the apprehended buyer as a witness in support of his agency defense. However, the jury had ample basis upon which to discredit the buyer's testimony, which was undermined by, among other things, observations made by the police and the significant quantity of drugs recovered from defendant. The police testimony established the elements of resisting arrest.

We perceive no basis for reducing the sentence. Concur—Lippman, P.J., Mazzarelli, Saxe, Williams and Buckley, JJ.