People v. Smith , 153 A.D.3d 643 ( 2017 )

People v Smith (2017 NY Slip Op 06091)

People v Smith

2017 NY Slip Op 06091

Decided on August 9, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 9, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
LEONARD B. AUSTIN
SHERI S. ROMAN
HECTOR D. LASALLE, JJ.

2016-01378
(Ind. No. 1335/14)

[*1]The People of the State of New York, respondent,

v

Damien A. Smith, appellant.

Thomas R. Villecco, Jericho, NY, for appellant.

Madeline Singas, District Attorney, Mineola, NY (Kevin C. King and John B. Latella of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (T. Murphy, J.), rendered January 28, 2016, convicting him of criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the People failed to prove that he intended to sell heroin that was in his possession is unpreserved for appellate review, since the defendant did not specify this ground in his motion to dismiss at trial (see CPL 470.05[2]; People v Gray, 86 NY2d 10). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633). The defendant's intent to sell was established with evidence that he possessed 53 glassine envelopes of heroin that were divided into six bundles within a larger sandwich bag, and the expert's testimony that this packaging and quantity was consistent with the sale of drugs (see People v Alvino, 71 NY2d 233, 245-246; People v Hewitt, 220 AD2d 686, 686; People v Nelson, 189 AD2d 828, 829; People v Herndon, 176 AD2d 817, 817; People v Blue, 173 AD2d 836).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 85-86).

BALKIN, J.P., AUSTIN, ROMAN and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court