PEOPLE v. McCALLA (2000)

Judgment, Supreme Court, New York County (Jeffrey Atlas, J. at suppression hearing;  Felice Shea, J. at jury trial and sentence), rendered November 7, 1997, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.

 The court properly denied defendant's suppression motion.   Probable cause was established by defendant's resemblance to the description provided by the undercover officer, coupled with defendant's presence in the location indicated by the undercover officer.   Moreover, there was no one else at that location meeting the description.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   Defendant's agency defense was disproved by evidence, including defendant's own testimony at trial, establishing that defendant acted primarily for his own benefit and that the benefit he received was not incidental (see, People v. Lam Lek Chong, 45 N.Y.2d 64, 74-75, 407 N.Y.S.2d 674, 379 N.E.2d 200, cert. denied 439 U.S. 935, 99 S.Ct. 330, 58 L.Ed.2d 331).

We perceive no basis for reduction of sentence.

MEMORANDUM DECISION.