Opinion
KA 04-00692.
February 4, 2005.
Appeal from a judgment of the Wyoming County Court (Mark H. Dadd, J.), rendered February 26, 2004. The judgment convicted defendant, upon a jury verdict, of criminal sale of a controlled substance in the fourth degree, criminal possession of a controlled substance in the fifth degree, criminal sale of marihuana in the fourth degree and unlawful possession of marihuana.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Present: Green, J.P., Scudder, Martoche, Smith and Lawton, JJ.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminal sale of a controlled substance in the fourth degree (Penal Law § 220.34), criminal possession of a controlled substance in the fifth degree (§ 220.06 [1]), criminal sale of marihuana in the fourth degree (§ 221.40) and unlawful possession of marihuana (§ 221.05), defendant contends that County Court erred in admitting a partially inaudible electronic surveillance tape. We reject that contention ( see People v. Cleveland, 273 AD2d 787, 788, lv denied 95 NY2d 864). Defendant further contends that the court erred in denying his motion to dismiss the second count of the indictment for facial insufficiency and granting the People's motion to amend the indictment. The failure of the second count of the indictment to include an element of the crime did not constitute a jurisdictional defect because that count specifically referred to the applicable section of the Penal Law ( see People v. Marshall, 299 AD2d 809, 810). We further reject defendant's contention that the sentence is unduly harsh or severe.