PEOPLE v. WHALEY (2000)

Judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered November 18, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 1/212 to 9 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis upon which to disturb the jury's determinations concerning credibility.

Although the court should have granted defendant's request for a “falsus in uno” charge concerning the jury's option to disregard the entire testimony of a witness who has intentionally testified falsely as to a material fact (see, People v. Johnson, 225 A.D.2d 464, 639 N.Y.S.2d 802), reversal is not required, because there is no significant probability that the defendant would have been acquitted had the requested charge been delivered (see, People v. Maher, 89 N.Y.2d 456, 462, 654 N.Y.S.2d 1004, 677 N.E.2d 728;  People v. Crimmins, 36 N.Y.2d 230, 242-243, 367 N.Y.S.2d 213, 326 N.E.2d 787).

MEMORANDUM DECISION.