Opinion
3190.
Decided March 23, 2004.
Appeal from judgment, Supreme Court, New York County (William Wetzel, J.), rendered February 10, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third and fifth degrees, and sentencing him, as a second felony offender, to an aggregate term of 4½ to 9 years, unanimously dismissed.
Alice Wiseman, for Respondent.
Paul Wiener, for Defendant-Appellant.
Before: Nardelli, J.P., Mazzarelli, Saxe, Friedman, JJ.
Since defendant has been deported, he is not presently available to obey the mandate of the court in event of affirmance ( see People v. Reyes, 292 A.D.2d 271, lv denied 98 N.Y.2d 701). Accordingly, his appeal is dismissed. Were we not dismissing the appeal, we would find that the verdict 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 identification and credibility.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.