People v Tavares

People v Tavares 2015 NY Slip Op 08915 Decided on December 3, 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 December 3, 2015
Tom, J.P., Sweeny, Andrias, Gische, JJ.
2886/09 -16275 16274 16273

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

v

Pedro Tavares, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (William B. Carney of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Lori Ann Farrington of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Edgar Walker, J.), rendered March 15, 2011, as amended June 2, 2011, convicting defendant, after a jury trial, of two counts each of criminal sale of a controlled substance in the first and second degrees, and sentencing him to concurrent terms of 12 years, unanimously affirmed.

The evidence provided reasonable assurances of the identity and unchanged condition of the illegal substances recovered (see People v Julian, 41 NY2d 340, 343 [1977]), including proof of police control over the drugs (see People v Cortijo, 251 AD2d 256 [1st Dept 1998], lv denied 92 NY2d 948 [1998]). The discrepancy regarding the color of the heroin raised factual issues that were properly resolved by the jury (see People v Ciriaco, 11 AD3d 324 [1st Dept 2004], lv denied 4 NY3d 742 [2004]; People v Epps, 8 AD3d 85 [1st Dept 2004], lv denied 3 NY3d 673 [2004]). The jury could have reasonably rejected the inference that the drugs tested by chemists and produced in court were not the same items that were recovered by the police in this case; the jury could have instead concluded that the color discrepancy was the product of mistake, including faulty observation, recollection or recording.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 3, 2015

CLERK