Opinion
6847.
October 20, 2005.
Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered March 5, 2004, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree 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 affirmed.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Adam Wolrich of counsel), for respondent.
Before: Saxe, J.P., Ellerin, Williams, Catterson and Malone, JJ.
In this observation sale case, the court properly exercised its discretion in receiving photographs depicting the observing officer's view. While the photos were taken under different lighting conditions from those existing at the time of the sale, and in a season in which there were presumably fewer leaves on trees shown in the photos than would have been present originally, these differences went to weight rather than admissibility ( see People v. Cruz, 5 AD3d 190, 191, lv denied 2 NY3d 798; People v. Whiten, 306 AD2d 105, 106, lv denied 100 NY2d 600; see also People v. Ferrero, 14 AD3d 447, lv denied 4 NY3d 886). The photos were properly authenticated because the observing officer confirmed that they accurately depicted his view of the scene, with the exception of the lighting and foliage differences, and testified that at the time of the sale the area was well-lit and nothing, including foliage, obstructed his view. Furthermore, the differences between the original lighting and foliage conditions and those shown in the photos were fully explored at trial, and the court gave a suitable instruction to the jury.