People v. Smith ( 1992 )

Judgment, Supreme Court, New York County (John A.K. Bradley, J.), rendered May 17, 1989, 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 degree, and sentencing him, as a second felony offender, to concurrent terms of imprisonment of from 8 to 16 years, unanimously affirmed.

The trial evidence was sufficient to prove beyond a reasonable doubt that defendant participated in the sale of heroin, as testified to by the undercover officer, and that he was not present merely to purchase drugs. In particular, defendant’s pointed questioning of the undercover officer sufficiently demonstrated that defendant’s approval was necessary to consummate the sale.

There is no reason to doubt the police officers’ testimony that the information they recorded in their daily report on the day of defendant’s arrest was the equivalent of that contained in their discarded scrap notes (see, People v Serrando, 184 AD2d 1094). The trial court’s decision to sanction the People by delivering an adverse inference charge was, in the circumstances, appropriate (see, People v Martinez, 71 NY2d 937).

In light of the fact that this offense constitutes defendant’s third conviction for felony drug sales, we do not find the sentence imposed to have been excessive. Concur — Sullivan, J. P., Milonas, Ross, Asch and Kassal, JJ.