Opinion
KA 01-02563
June 13, 2003.
Appeal from a judgment of Wayne County Court (Kehoe, J.), entered December 19, 2000, convicting defendant after a jury trial of, inter alia, criminal sale of a controlled substance in the third degree.
DAVID M. PARKS, ITHACA, FOR DEFENDANT-APPELLANT.
ROBERT JACKSON, DEFENDANT-APPELLANT PRO SE.
RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (JACQUELINE McCORMICK OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of criminal sale of a controlled substance in the third degree (Penal Law 220.39), criminal possession of a controlled substance in the third degree (220.16 [1]), and criminal possession of a controlled substance in the fourth degree (220.09 [1]). We reject defendant's contention that County Court erred in admitting the cocaine in evidence because there was a deficiency in the chain of custody. "Deficiencies in the chain of custody of property go to the weight rather than the admissibility of that evidence, as long as the requirements of proof of identity and unchanged condition are met" ( People v Burgos, 291 A.D.2d 907, 908, lv denied 97 N.Y.2d 751). The trial testimony of various witnesses established that the cocaine was taken from the undercover officer by a second officer, who packaged and tagged it and then heat-sealed the package and attached identification numbers to it. The package arrived for testing at the crime lab sealed and unopened in the package bearing the identification numbers. Although there was no testimony concerning the precise manner in which the package was delivered to the crime lab, the forensic chemist who tested the drugs testified that the package and the cocaine were in an unaltered condition before she slit open the heat-sealed package. That testimony provided reasonable assurances of identity and thus established an adequate foundation for admission of the cocaine in evidence ( see People v. Julian, 41 N.Y.2d 340, 343).
We also reject the contention of defendant that he was deprived of his right to be tried by an unbiased jury by the court's denial of his request to ask the prospective jurors, "[I]n a proper case, do you serve our system of justice when you bring back a not guilty verdict?". "`The Judge presiding necessarily has broad discretion to control and restrict the scope of the voir dire examination'" ( People v Horning, 284 A.D.2d 916, 917 , lv denied 97 N.Y.2d 705). On this record, defendant has not established that the court abused its discretion in denying his request ( see People v. Walston, 277 A.D.2d 593, 594, lv denied 96 N.Y.2d 754). Contrary to defendant's further contention, the verdict is not against the weight of the evidence. Prosecution witnesses identified defendant as the seller of drugs in a controlled undercover purchase facilitated by an informant. The testimony of defendant that he was in a different city at the time of the purchase merely created a credibility issue that the jury was entitled to resolve in favor of the People (see People v. Williams, 291 A.D.2d 897, 898, lv denied 97 N.Y.2d 763; People v. Cobian, 185 A.D.2d 452, lv denied 81 N.Y.2d 838).
The sentence is not unduly harsh or severe. We have considered the remaining contentions of defendant, including those contained in his pro se supplemental brief, and conclude that they are without merit.