Opinion
205 KA 16–01187
03-13-2020
The PEOPLE of the State of New York, Respondent, v. Samantha DIXON, Defendant–Appellant.
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, WINSLOW, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her, upon a nonjury verdict, of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1] ) and criminal possession of a controlled substance in the third degree (§ 220.16[1] ), arising from her sale of heroin to a confidential informant. Defendant's contention that the evidence is legally insufficient to support the conviction because the testimony of the People's witnesses was incredible as a matter of law is not preserved for our review (see People v. Wilcher, 158 A.D.3d 1267, 1267–1268, 70 N.Y.S.3d 712 [4th Dept. 2018], lv denied 31 N.Y.3d 1089, 79 N.Y.S.3d 111, 103 N.E.3d 1258 [2018] ; People v. Gaston, 100 A.D.3d 1463, 1464, 953 N.Y.S.2d 780 [4th Dept. 2012] ; see generally People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). In any event, that contention lacks merit. In presenting their case, the People offered the testimony of the confidential informant to establish the elements of the crimes charged, including defendant's knowing possession, intent to sell, and sale of a controlled substance. The confidential informant's testimony "was not incredible as a matter of law inasmuch as it was not impossible of belief, i.e., it was not manifestly untrue, physically impossible, contrary to experience, or self-contradictory" ( Wilcher, 158 A.D.3d at 1268, 70 N.Y.S.3d 712 [internal quotation marks omitted]; see People v. Harris, 56 A.D.3d 1267, 1268, 868 N.Y.S.2d 448 [4th Dept. 2008], lv denied 11 N.Y.3d 925, 874 N.Y.S.2d 10, 902 N.E.2d 444 [2009] ). The confidential informant's criminal history and receipt of a benefit in exchange for her willingness to work with the police did not render her testimony incredible as a matter of law (see People v. Hodge, 147 A.D.3d 1502, 1503, 47 N.Y.S.3d 559 [4th Dept. 2017], lv denied 29 N.Y.3d 1032, 62 N.Y.S.3d 301, 84 N.E.3d 973 [2017] ; People v. Carr, 99 A.D.3d 1173, 1174, 952 N.Y.S.2d 342 [4th Dept. 2012], lv denied 20 N.Y.3d 1010, 960 N.Y.S.2d 353, 984 N.E.2d 328 [2013] ). Those facts were placed before County Court, and we see no basis to disturb the court's credibility determination (see Carr, 99 A.D.3d at 1174, 952 N.Y.S.2d 342 ). Furthermore, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the evidence is legally sufficient to support defendant's conviction with respect to each count (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; People v. Bausano, 122 A.D.3d 1341, 1342, 996 N.Y.S.2d 834 [4th Dept. 2014], lv denied 25 N.Y.3d 1069, 12 N.Y.S.3d 620, 34 N.E.3d 371 [2015] ). Neither the absence of a recording of the transaction nor defendant's challenges to the credibility of the police witnesses precluded the court from finding, based on the testimony of the confidential informant and the forensic chemist who confirmed that the tested substance contained heroin, that defendant knowingly and unlawfully possessed heroin with intent to sell and did sell the drug to the informant (see Penal Law §§ 220.16[1] ; 220.39[1]; People v. Nichol, 121 A.D.3d 1174, 1177, 994 N.Y.S.2d 691 [3d Dept. 2014], lv denied 25 N.Y.3d 1205, 16 N.Y.S.3d 527, 37 N.E.3d 1170 [2015] ).
Viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; People v. Stephenson, 104 A.D.3d 1277, 1278, 960 N.Y.S.2d 823 [4th Dept. 2013], lv denied 21 N.Y.3d 1020, 971 N.Y.S.2d 502, 994 N.E.2d 398 [2013], reconsideration denied 23 N.Y.3d 1025, 992 N.Y.S.2d 808, 16 N.E.3d 1288 [2014] ).