Opinion
KA 16–01117 453
05-01-2020
The PEOPLE of the State of New York, Respondent, v. Matthew STEPHANY, Defendant–appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLYSON L. KEHL–WIERZBOWSKI OF COUNSEL), FOR DEFENDANT–APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLYSON L. KEHL–WIERZBOWSKI OF COUNSEL), FOR DEFENDANT–APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal sale of a controlled substance in the fifth degree ( Penal Law § 220.31 ), criminal possession of a controlled substance in the fifth degree (§ 220.06[1] ), and two counts of criminal sale of marihuana in the fourth degree (§ 221.40), arising from his sale of marihuana and hallucinogenic mushrooms to a confidential informant.
We reject defendant's challenge to the legal sufficiency of the evidence. Contrary to defendant's contention, the testimony of the confidential informant was not incredible as a matter of law, i.e., his testimony was not "manifestly untrue, physically impossible, contrary to experience, or self-contradictory" ( People v. Ponzo, 111 A.D.3d 1347, 1348, 975 N.Y.S.2d 274 [4th Dept. 2013] [internal quotation marks omitted]; see People v. Tuff, 156 A.D.3d 1372, 1374, 68 N.Y.S.3d 273 [4th Dept. 2017], lv denied 31 N.Y.3d 1018, 78 N.Y.S.3d 288, 102 N.E.3d 1069 [2018] ). Although the confidential informant's recollection of the sales "was inconsistent in minor respects from other evidence in the record, those discrepancies were explored at trial" and presented an issue of credibility for the jury to resolve ( People v. Heaney, 75 A.D.3d 836, 837, 906 N.Y.S.2d 350 [3d Dept. 2010], lv denied 15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821 [2010] ; see People v. Barr, 216 A.D.2d 890, 890, 628 N.Y.S.2d 901 [4th Dept. 1995], lv denied 86 N.Y.2d 790, 632 N.Y.S.2d 503, 656 N.E.2d 602 [1995] ), and we see no basis to disturb its credibility determination (see People v. Wilcher, 158 A.D.3d 1267, 1268, 70 N.Y.S.3d 712 [4th Dept. 2018], lv. denied 31 N.Y.3d 1089, 79 N.Y.S.3d 111, 103 N.E.3d 1258 [2018] ). In addition, the People presented the testimony of the police investigators who supervised the controlled purchases and monitored the transactions through an audio device and the testimony of a forensic chemist establishing the weight and identity of the contraband (see Tuff, 156 A.D.3d at 1374, 68 N.Y.S.3d 273 ). Thus, viewing the evidence in the light most favorable to the People (see People v. Gordon, 23 N.Y.3d 643, 649, 992 N.Y.S.2d 700, 16 N.E.3d 1178 [2014] ), we conclude that the evidence is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Contrary to defendant's further contention, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).