Opinion
2498-2498A
December 10, 2002.
Judgments, Supreme Court, New York County (Richard Carruthers, J.), rendered October 30, 2000, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third and fifth degrees, and also convicting him, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to an aggregate term of 4½ to 9 years, unanimously affirmed.
Susan Axelrod, for respondent.
Luke Martland, for defendant-appellant.
Before: NARDELLI, J.P., TOM, MAZZARELLI, BUCKLEY, ELLERIN, JJ.
The jury's verdict was not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490; see also People v. Rayam, 94 N.Y.2d 557). Defendant's intent to sell was established by the totality of circumstances, including the quantity of drugs, the manner in which they were packaged and the circumstances under which they were recovered (see People v. Dailey, 281 A.D.2d 244, lv denied 96 N.Y.2d 827). Police testimony established that defendant had possessed a bag of drugs recovered from under a grate, and we find no reason to disturb the jury's decision to credit that testimony.
The officers' testimony that they had seen defendant previously was not evidence of any uncharged crime, and was relevant to the issue of identity (see People v. Bamberg, 267 A.D.2d 59, lv denied 95 N.Y.2d 793;see also People v. Jones, 293 A.D.2d 489, lv denied 98 N.Y.2d 652). Additionally, any possible prejudice was prevented by the court's limiting instructions.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.