People v. Garcia ( 1993 )

—Judgment, Supreme Court, Bronx County (Edward Davidowitz, J.), rendered June 21, 1990, 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 upon his pleas of assault in the second degree, criminal possession of a weapon in the second degree, and criminal sale of a controlled substance in the third degree, and sentencing him to three concurrent terms of 3 Vi to 10 Vi years on the drug counts to run consecutively to two concurrent terms of lVi to 4Vi years on the assault and weapon counts, unanimously affirmed.

Evidence at trial was that defendant refused to sell cocaine to an undercover officer because he believed him to be a police officer, but thereafter gave his codefendant a tin of cocaine to sell to another undercover officer, and that at the time of his arrest defendant was in possession of six tinfoils of cocaine. Evidence of the unsuccessful sale was properly admitted since its probative value on the issue of defendant’s possession with intent to sell outweighed any potential for undue prejudice (see, People v Bradley, 193 AD2d 385, 386, lv denied 81 NY2d 1070). We have reviewed defendant’s other arguments and find them to be without merit. Concur—Ellerin, J. P., Wallach, Kupferman and Rubin, JJ.