Opinion
Decided and Entered: June 8, 2000.
Appeal from a judgment of the County Court of Sullivan County (La Buda, J.), rendered January 28, 1999, upon a verdict convicting defendant of two counts of the crime of criminal sale of a controlled substance in the third degree.
Del Atwell, Albany, for appellant.
Stephen F. Lungen, District Attorney (Karen Mannino of counsel), Monticello, for respondent.
Before: Crew III, J.P., Peters, Mugglin, Rose and Lahtinen, JJ.
MEMORANDUM AND ORDER
Pursuant to an undercover investigation, a "confidential source" working with the Drug Enforcement Agency in conjunction with the Village of Monticello Police Department in Sullivan County approached defendant on July 14, 1998 to buy four bags of heroin. Defendant left and told him to have the money ready. Approximately 15 minutes later, the confidential source was advised that defendant was waiting for him in another location where, after tendering $105, he received the drugs. On August 20, 1998, the confidential source again requested heroin from defendant. When told that none was available, he requested cocaine. After receiving $125, defendant left, returning approximately 1 3/4 hours later with the drugs. Defendant was thereafter arrested and indicted for two counts of criminal sale of a controlled substance in the third degree. After a jury trial, he was convicted on both counts and sentenced as a second felony offender to consecutive prison terms of 10 to 20 years. He appeals, challenging the legal sufficiency and weight of the evidence, as well as the racial composition of the jury and the harshness of his sentence.
Upon viewing the evidence in a light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620) and according them the benefit of every reasonable inference, we find the verdict amply supported by the evidence (see, People v. Bleakley, 69 N.Y.2d 490) and not unreasonable (see, People v. Howard, 169 A.D.2d 984). The jury properly rejected defendant's assertion that he was merely an agent who readily agreed to obtain drugs for the confidential source (see, People v. Lam Lek Chong, 45 N.Y.2d 64, cert denied 439 U.S. 935). Record evidence reveals "that the defendant's conduct evinced sufficient indicia of `[s]alesman-like behavior' to establish that he was not acting solely [as an agent] but that he had a personal interest in promoting the transaction" (People v. Jackson, 155 A.D.2d 479, 479-480, quoting People v. Roche, 45 N.Y.2d 78, 85, cert denied 439 U.S. 958; see, People v. Mosqueda, 170 A.D.2d 700). In the exercise of our factual review power, we are satisfied that the evidence disproved the defense beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see, People v. Bleakley, supra, at 495; People v. Jefferson, 248 A.D.2d 815, 817, lv denied 92 N.Y.2d 926). With defendant's objection to the racial composition of the jury unpreserved for our review (see, People v. Smith, 81 N.Y.2d 875), we next address the sentencing issue.
While the aggregate sentence of 20 to 40 years of imprisonment exceeds the maximum aggregate sentence permitted by Penal Law § 70.30 (1) (e) (i), we find that since the Department of Correctional Services will administratively recalculate it to the legally authorized limit of 30 years, no action on our part is required (see, People v. Moore, 61 N.Y.2d 575, 578). Yet, we have a broad plenary power to modify any sentence in the interest of justice (see, People v. Delgado, 80 N.Y.2d 780) even though it may be within the permissible statutory range (see, id.; see also, CPL 470.15 [b]). And, while our intrusion into the discretionary area of sentencing should rarely be exercised, we are of the opinion that the resulting aggregate consecutive sentence imposed here was unduly severe. Not unmindful that defendant was a second felony offender, we find that numerous other factors, including the sentence recommended by the People (6 to 12 years of imprisonment to run concurrently) and the fact that defendant sold a small quantity of drugs, warrant our modification thereof to concurrent prison terms.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by directing that the prison sentences imposed on defendant be served concurrently rather than consecutively, and, as so modified, affirmed.