Opinion
KA 02-01038
May 2, 2003.
Appeal from a judgment of Supreme Court, Onondaga County (Brunetti, J.), entered May 2, 2002, convicting defendant after a jury trial of, inter alia, criminal sale of a controlled substance in the third degree (two counts).
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DAVID A. ROTHSCHILD OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., HURLBUTT, SCUDDER, LAWTON, AND HAYES, 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 following a jury trial of two counts of criminal sale of a controlled substance in the third degree (Penal Law 220.39) and one count of criminal possession of a controlled substance in the third degree (220.16 [1]). Contrary to defendant's contention, the verdict is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495). The issues raised by defendant concerning the alleged lack of specificity of the description of the suspect used by the police were properly placed before the jury ( see People v. Jefferson, 207 A.D.2d 753, 754, lv denied 84 N.Y.2d 1012; see also People v. Collardo, 205 A.D.2d 796, 797, lv denied 84 N.Y.2d 934), and the failure to recover the buy money or drugs from defendant does not render the verdict against the weight of the evidence ( see People v. Villanueva, 193 A.D.2d 382, 383, lv denied 82 N.Y.2d 728).
Contrary to defendant's further contention, the drive-by identification of defendant near the scene of the crime by the undercover officer who had purchased the drugs from him a few minutes earlier was permissible in the interest of prompt identification ( see People v. Ortiz, 90 N.Y.2d 533, 537; People v. Thompson, 298 A.D.2d 869, 870, lv denied 99 N.Y.2d 565) . In any event, the undercover officer's identification of defendant was merely confirmatory ( see People v Wharton, 74 N.Y.2d 921, 922-923; Thompson, 298 A.D.2d at 870; People v Cuthrell, 284 A.D.2d 982, 983).
We reject defendant's contention that Supreme Court erred in admitting cocaine found on a codefendant as evidence against defendant. That evidence was necessary to complete the narrative of events ( see People v. McDowell, 191 A.D.2d 515, lv denied 81 N.Y.2d 1016; see also People v. Mitchell, 295 A.D.2d 916, lv denied 98 N.Y.2d 770). In any event, any prejudice to defendant was minimized by the court's limiting instructions with respect to the evidence ( see People v Maddox, 272 A.D.2d 884, 884-885, lv denied 95 N.Y.2d 867).
Defendant further contends that the court erred in rejecting his contention that he was denied effective assistance of counsel without conducting a hearing. Specifically, defendant contends that his attorney failed to inform him of a favorable plea offer ( see generally People v. Sherk, 269 A.D.2d 755, lv denied 95 N.Y.2d 804). We are unable to address that contention, however, because it involves matters outside the record. Defendant's remedy is by way of a motion pursuant to CPL 440.10 ( see People v. Bennett, 277 A.D.2d 1008, lv denied 96 N.Y.2d 780) . Finally, defendant was not deprived of a fair trial by cumulative error, and the sentence is neither unduly harsh nor severe.