People v Simon

People v Simon 2015 NY Slip Op 03915 Decided on May 7, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 7, 2015
Mazzarelli, J.P., DeGrasse, Richter, Feinman, JJ.
14563 3957N/11

[*1] The People of the State of New York, Respondent,

v

Dennis Simon, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein of counsel), for respondent.

Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered January 18, 2013, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third and fifth degrees and unlawful possession of marijuana, and sentencing him, as a second felony drug offender, to an aggregate term of 5 years and a $100 fine, unanimously affirmed.

The verdict was not against the weight of the evidence (People v Danielson, 9 NY3d 342 [2007]). There is no basis for disturbing the jury's credibility determinations. The evidence, including defendant's possession of 18 bags of cocaine hidden in his underwear, supported the inference that he intended to sell the drugs. That inference was also supported by expert testimony.

The court properly exercised its discretion when it admitted expert testimony concerning circumstances that indicate an intent to sell drugs (see People v Hicks, 2 NY3d 750 [2004]). The testimony was within the scope permitted under Hicks, and it did not express an opinion on the ultimate issue of defendant's intent (see People v Gray, 113 AD3d 561 [1st Dept 2014], lv denied 23 NY3d 963 [2014]; People v Peguero, 88 AD3d 589 [1st Dept 2011], lv denied 18 NY3d 927 [2012]).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 7, 2015

CLERK